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Understanding Property Easements
There are three main types of property easements:
- Easements in gross. This type of easement benefits an individual or group, rather than a property. Public utility easements are easements in gross.
- Easements appurtenant. An easement in appurtenant, also known as a shared parcel use easement, benefits properties rather than specific people and groups. An example of this type of easement is a shared driveway that is technically on one parcel of land, but attached to its neighboring parcel.
- Prescriptive easements. These are easements created through the continued use of a property without its owner’s permission. This could be a fence or another structure on the property.
For prescriptive easements to become legally valid private property easements, the unauthorized, observable use of the property must continue for a specific period of time. In California, this period is five years. In Texas, it is 30 years. Easements are attached to their properties, so they generally remain in place when the properties are sold to new owners. What this means, in most cases, is that when a new buyer purchases a property, she purchases it with the easement. She cannot typically interfere with the use of that easement by another party, whether a utility company that needs to use the property to serve the area or a neighbor who uses a path on the property to access a nearby pond; users of the easement continue to have that right even after the new owner takes possession of the property.
Other types of easements are: express easements, which are created through private agreement between landowners and recorded with their land deeds, and implied easements that arise out of necessity. An example of an implied easement is a property owner’s use of his neighbor’s private road in order to access the main road.
Read More: Types of Prescriptive Easements
How Might Private Easements Affect My Property Ownership Rights?
In addition to utility easements, a property owner may sell an easement to someone else—for example, to use as a path or driveway or for sewer or solar access. Private sewer easements are often sold when an uphill house is being built, so the pipe from the house to the street can slant properly—sometimes right under your property.
If your title contains private easements, you should get copies of the actual easement documents. You need to know where the easements are and what uses they allow. If a solar access easement has been sold to a neighbor, for example, you could find that you are severely limited in what you can build or grow on your property, because you can’t block sunlight to the neighbor’s solar collectors. If you are unaware of the terms of a private easement, you could unknowingly interfere with the easement rights and be liable for damage.
Any private easement referred to in your property papers should have a reference number, such as a book and page number. Your county clerk can help you locate it in the public records and obtain a copy to keep with your deed.
Other Means of Finding Easement Information
For accurate information about public land easements, private property easements and shared parcel use, a property owner or potential buyer should head to the county clerk and look at the property’s public records. Legal records of easements in gross and easements appurtenant can be found with transfer deeds and other documents related to a property. Finding out whether there is a prescriptive or implied easement on a property can be trickier because proving that this type of easement exists requires the easement’s user to prove that it fits the criteria for a legal easement, and this criteria varies from state to state. Prospective buyers concerned about these kinds of easements can work with real estate lawyers to determine not just whether easements are present on a property, but also their validity.
Another source of information about utility easements is the utility companies themselves. Property owners and prospective buyers can contact utility providers and request information about existing easements on specific parcels of land.
Individuals considering buying property can also seek easement information from their title insurance providers. A title insurance provider verifies real estate titles and provides owners and prospective owners with information about liens, easements and other issues about their properties that could lead to lawsuits and title disputes.
The property deed is recorded through the county courthouse. However, the final location of the record may vary depending on the age of the record and the county’s record keeping system. Most counties maintain deeds at either the Assessor’s Office or the County Clerk’s Office. Older records may be archived, potentially on microfiche in some counties.
Start at the county courthouse if you are unsure. Ask at the court information desk where property deeds are kept. The clerk will direct you to the appropriate office or department.
When you arrive at the appropriate records office, provide the clerk with the pertinent information regarding the property including the owners’ names, address, parcel number and property description. Pay any applicable fees. For example, the County of Placer in California currently charges $2 per first certified copy page and $1 per page thereafter.
Writing to the local utility company is another way to obtain the description of specific utility easements.
How To Find Easement Information On A Property
Let’s get straight into it! You can find out easement information on a property by checking the property deed.
The deed will have all the details that we mentioned earlier, providing you with the information that you need about the easement.
It will state the public or private usage rights of the property and ensure that you are fully aware of the easement.
For those that own their property, you can find the deed in the closing paperwork when you purchase the property. If it isn’t there or you have lost the deed, you can get a copy from county records.
Each county and state operates its record department slightly differently, so be sure to speak to yours to find out more information about added costs or to answer any queries that you have.
You can also find out information about an easement through a realtor. They can order a title report that will describe any easements.
You can request this during the purchase process, allowing you to find out about the easement beforehand. We recommend doing this to ensure that there are no surprises when the property is yours!
Asking about easements and their information is vital to ensure that you have all the information about the property before deciding to proceed.
Often, a realtor will inform you of an easement when showing you the property, but this is not always the case.
You should be sure to ask about easements always, but especially if the property is near a beach, public path, or mountains.
Often, there will be an unmarked area of easement near your property allowing people to reach the beach or climb the mountain.
You will want to be aware of these areas before you make the purchase. It is often worth speaking to the current property owners if that is possible.
Asking them about the easement and if it impacted them living at the property will provide you with insight and allow you to make a more informed decision.
Remember, it is always better to have as much information as possible when purchasing a property to avoid any surprises.
More Help with Easements
To learn more about easements, how to give written permission for an easement, and other issues involving your land, get Neighbor Law: Fences, Trees, Boundaries & Noise, by Emily Doskow and Lina Guillen (Nolo).