Understanding Easements

Published: 31st July 2009
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An easement is a right to use real property in possession of another person for a stated purpose. An easement is considered a property right in itself at common law and is still treated as a type of property in most jurisdictions. Although sometimes they may significantly affect the value of the land, in many cases easements are simply a fact of life, and there are many types of easements surrounding you daily that you may not even be aware.

The right to use the land, when conferred by an easement rather than outright ownership, is limited to a particular purpose or type of use. It is considered an interest in the land, but only allows the owner of the easement limited stated rights detailed in the easement itself. However, different from a lease, an easement does not give the holder a right of "possession" of the property.

A "right of way" easement is a common example of an easement that provides the owner of a piece of landlocked piece of proerty access rights to cross another owners property to reach their own property.

An easement may give a utility company the right to erect power lines or bury a gas pipeline across a tract of land, or a housing development might possess an easement that allows it to build and maintain a water storage facility. These examples of easements would likely be included in a deed description and remain in place if the land is sold.

How does an easement affect the person who grants it?

The landowner who grants an easement usually cannot build structures within an easement area or use fencing that would hinder access. Other activities might also be prohibited. Before you purchase property you should know where all easements are located and what restrictions are associated with them.

There are several common types of easements; an easement appurtenant stays with the property. In other words, if the property is sold, the easement conveys to the new owner. Likewise, if the land served by the easement is sold, the new owner of that tract of land will obtain the easement. The owner of an easement appurtenant must own a parcel of land that is affected by having the easement, generally a piece of property adjacent to or near the one concerned in the easement. An easement in gross is a right that belongs to a particular person or entity, not to a piece of property. This type of easement can be granted to someone who does not own an adjacent piece of land.

Before making any modifications to your home like building a pool or making an addition to your home, you'll want to ensure that you don't build in an easement. I once had a client that was forced to remove a shed (it was on a slab and was not a portable building) because it was located in a utility easement. A land survey will let you know if there are any easements associated with the property. Existing easements should also be found through a title survey.

It's important to find out about easements before you buy because they can affect the value of the land, and they may also be inconvenient, depending on the nature of the easement. However, in most cases you should not abandon a possible land purchase simply because there is an easement. Before agreeing to purchase a property with easements, be sure to take into consideration if it will affect your use of the property or future resale values.

Andrew Smith '93, is a real estate Broker for Keller Williams Realty in College Station, Texas. He can be reached at (979) 777-7677. You can view The Smith Team website at www.RealEstateBCS.com or www.SmithTeamBCS.com

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