The legal term “easement” refers to the legal right to use another person’s real property, for a specific purpose and a specific amount of time. An easement gives a person the legal right to go through another person’s land, as long as the usage is consistent with the specified easement restrictions. Although an easement grants a possessory interest in the land for a specific purpose, the landowner retains the title to the property.

Easements may be given to anyone, such as neighbors, government agencies, and private parties. An example of an easement would be if a property owner allows the use of their private road or path for their neighbor’s navigation. Common easements include public utilities, power lines, and cable TV (though these are often underground). As easements are associated with real property, they are governed by real property law.

How Do I Know If My Property Has an Easement?

As mentioned above, easements may be granted to a variety of different persons or agencies. For example, if you want to know the location of sewer lines or hidden power lines, the best way to find those public utility easements is to contact your local utility company. However, the best way to know whether or not your property has an easement is to contact the County land records office or County Clerk’s office.

Most easements are recorded on or attached to the deed for the property that you own. Another place that you could search for an easement is at city hall. Any easement that is recorded on the title to your property will include a reference number. A county clerk then can help you use that reference number to locate the original easement document for you to make a copy of.

Are There Different Types of Easements?

Different states may recognize several different types of easements, depending on that state’s specific real property laws. In general, there are three different types of easements:

  • Easement by Prescription: This type of easement is also known as a prescriptive easement. It is an implied easement gained under adverse possession. Meaning, someone other than the property’s original owner gains use or ownership rights to that property.

    • As long as a person has actually used the land or property openly and continuously for a specified amount of time, without the permission of the owner, they can establish a prescriptive easement. You may have a prescriptive easement if you routinely use a portion of someone else’s property;
  • Easement by Necessity: This type of easement is typically created by the law, not by a specific promise or agreement between neighbors. The law implies the easement’s existence to achieve just results.

    • An example of easement by necessity would be a parcel of land that is landlocked. Landlocked land is land that cannot be accessed except by traveling over other property. As such, the law creates an easement by necessity to allow the landlocked owner access to their own property by way of the other landowner’s property; and
  • Negative Easement: A negative easement creates an obligation or a restriction to where the property’s owner cannot use their own property in a particular way, that would otherwise be legal to do so. Negative easements are generally treated as restrictive covenants.

    • An example of this would be if a new condo were being built, and the owners of an existing condo building do not want their ocean view blocked by the new building. A negative easement may address this concern.

Some other types of easement include:

  • Express grants;
  • Reservation easements;
  • Affirmative easements;
  • Utility easements;
  • Public easements; and,
  • Easement by estoppel.

Do I Have to Give an Easement?

As mentioned above, an easement by necessity is an easement that is created by law to allow a person to have a right of access to their property. If your land is subject to an easement by necessity you cannot interfere with your neighbor’s use of the easement to access their home. In addition, some utility companies or cities are granted easements and recorded in the plat records long before homes are built on the land.

Utility easements are easements that grant the city or a utility company the right to use and access a person’s property for the purposes of providing public utilities such as electricity, water, sewer lines, or gas. Utility easements attach to property deeds and pass to all future owners whenever the property is transferred or sold.

How to Determine Amount of Compensation for Easement?

Once again, there are some easements in which you cannot seek compensation for, as they are easements that the law allows for without any compensation necessary. However, the amount of compensation for private easements are often negotiated in real estate contracts. When negotiating an easement it is important to do the following:

  • Specify the Scope of the Easement: It is important to specify the scope of the easement when granting a private easement to another party.

    • For example, if you are granting your neighbor the right to use your private fishing pond or lake you should be sure to specify the terms of the easement such as the time which you are granting them access and/or any other restrictions;
  • Negotiate a Price: When negotiating a private easement you should research local records to get an idea of the price for such an easement.

    • For example, if you are allowing a third party the right to enter your land and access your pond temporarily, you may wish to charge them only $100 for the year. However, if you are allowing them to enter your land and access your pond on a permanent basis you may wish to negotiate for more money, as that easement would last for a longer period of time; and
  • Get the Agreement in Writing: Most importantly your easement should always be confirmed in writing, signed by all parties involved, and notarized. Once you have a fully executed easement, you should then file the easement in your local county’s land records office.

Do I Need a Lawyer If I Have a Problem with an Easement?

As can be seen, easements are fairly common when it comes to real property. As a landowner you have an absolute right to use your property as you see fit, which includes the right to grant other parties the use of your property. However, sometimes locating an easement on your property is difficult and may interfere with the usage of your property.

If you are having any issues with an existing easement on your property or if you are in the process of negotiating an easement, it is in your best interests to consult with a well qualified and knowledgeable real estate attorney in your area.

An experienced real estate attorney will be able to assist you in determining what valid easements exist on your property. An attorney will also be able to assist you in negotiating an easement. Finally, an attorney will be able to represent you at any court hearings, should you be sued over an easement related to your property.