assignment of easements

Buyer Guides

Easements: know your property rights.

Found out the home you’re planning to buy has an easement on the property? That could be a good thing, a bad thing, or an entirely neutral thing. Here’s what easements are, and how they affect your property rights.

What are property easements?

An easement gives a person or organization a legal right to use someone else’s land—but only for a needed purpose. A utility company may have an easement on your property to access an electrical pole. Or if your driveway overlaps your property line, you might rely on an easement on your neighbor’s property to get to your garage.

What you need to know about easements when buying a home:

1. does this property have easements.

Legally, sellers must disclose easements on their property during the sale, so you should know if an easement exists by the time you have a purchase agreement, if not sooner. But if you’re buying a bank-owned home being sold as-is, you should do some extra research yourself. Your real estate agent can help you decide if there’s reason to suspect a property might have an easement on it, but contact the city to find out for sure. Find out exactly where and what type of easements they are. Some easements, for example, remain after you buy the house, but others don’t.

2. What types of easements are there?

The property rights an easement allows depends on the rules of your specific easement. There are many types, but these are some of the features that help define them:

• Appurtenant versus gross easements: An appurtenant easement allows a property owner access to land that’s only accessible through a neighbor’s land. These technically benefit a property. An easement in gross benefits an individual or entity, whether that’s a neighbor, a utility company, or other organization.
• Public versus private : Both appurtenant and gross easements can grant access to public or private entities or properties. A private easement might allow a neighbor to access your property, and a public one might allow any member of the public to walk through your yard.
• Affirmative versus negative : Most easements allow something to happen, which are affirmative. But they can prevent actions, too, like blocking someone’s solar panels with a line of trees, which would be a negative easement. (That’s right: easements can cover rights to air space, area underground, and the surface of land.)

Prescriptive easement : Prescriptive describes the way in which an easement comes into being. This is when someone is using a property owner’s land regularly for a certain period of time (set by state law) without being restricted by the owner. This is commonly known as “squatter’s rights.”

3. What are your property rights and easement rights?

If you buy a house with an easement, odds are, you’ll need to abide by the rules of the easement—because they’re not often put in place lightly. Let’s say you bought beachfront property, and the only way the neighbors can access the public beach is through a path in your yard. You’d legally need to let them use it, because they have a right to access the public beach. Similarly, if a utility company has an easement to access a pipe under your yard, there’s not much you can do to change that.

Otherwise, you have the right to use your property in any way you’d like — so long as that doesn’t include anything that prevents the easement from being accessed in its intended way.

4. What if you’re buying a property that relies on an easement on someone else’s property?

If you fall in love with a home that’s perfect and in the right neighborhood , but it has an extremely narrow driveway, you might be pleased to find out that you have an easement that allows you use a few feet of your neighbor’s property to get in and out of your car. Just make sure the terms of the easement guarantee it will stay with the property after you buy it, and be open and friendly with your neighbor about the rules of the easement. They have to let you use it, but if they’d prefer you to treat their property in a certain way, respecting their wishes will help keep things neighborly.

5. How can easements affect my renovations or additions?

If you plan to build a new construction home or an addition, it’s especially important to know whether there are any easements on a property before you buy. You can find out by looking over your paperwork. You’ll find easements on deeds, plats, and other homeowner documents. If your neighbor received an easement to ensure a view of a lake, for example, you couldn’t renovate, expand, or even plant a tree that would block your neighbor’s view.

6. Can easements be challenged?

They can. But you would need to go to court to challenge an easement, so it’s not easy to do in the middle of home buying. If the easement holder agrees to terminate, it could be a smoother process. And in some cases, easements have an expiration date (this would be stated in your deed), so that could be good news.

Other cases are challengeable, but harder. For instance, if there’s a prescriptive easement that’s not in continuous use (like a shed was built over your property line, but it’s no longer used), you could challenge it. However, there’s no guarantee you would win.

Easements aren’t the only legal constraints that could be on a potential property. Next, learn about how homeowner’s association rules might affect the home you want to buy.

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by   Ronna L. DeLoe, Esq.

Ronna L. DeLoe is a freelance writer and a published author who has written hundreds of legal articles. She does...

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Updated on: April 4, 2023 · 3 min read

What is an easement?

• Determining whether there's an easement on property

The consequences of having an easement on your property

How to remove an easement from your property.

Whether an easement affects you and your property depends on what type of easement is on the land, how long it lasts, and whether it prevents you from doing what you want with your property.

It's important to know about property easements before you buy a house because you may find that you're stuck with an easement you don't want.

A property easement grants someone else the limited right to use your land for a specific purpose. For example, a common easement is one that a utility company has for placing cables, pipes, or other equipment under or over the property to allow property owners to use their utilities.

Another common easement is if you and your neighbor share a driveway. In some cases, one of you—not both—will own the driveway, but the other will have the right to the easement and use of the driveway to access their house.

Determining whether there's an easement on property

Before buying property, it's important to hire a real estate attorney to help you check if there's an easement on the property or do it yourself.

To check for an easement on the property, you can take the following steps:

• Contact the utility companies to see if they have any easements on your property.
• Check with the county clerk or county land records office to find out whether the prior deed shows an easement.
• Obtain a survey of the property to see if there are any easements and where they're located.
• Get a title company to do a title search of the property, which will uncover any easements and other burdens on the property.
• Make sure to get a warranty deed from the owner, as it must show any easements on the property.

If there's an easement on the property, it's usually listed on your deed. You'll want to check if you're the easement user, known as the dominant property, or if you're the property owner who must allow your neighbor to use your property, known as the servient property.

The servient property owner cannot block the use of the easement.

Whether you're the dominant or servient property of an easement, having an easement can sometimes negatively affect the value of your property. Not everyone wants to buy property with an easement on it, so the property with the easement may take longer to sell.

If you and your neighbor share a driveway due to an easement, and if you're the servient property, you can't stop your neighbor from using the driveway.

An easement continues even after you sell the property.

However, if you've given your neighbor access to an area of your property for a specific purpose, and it's not in the deed, this type of easement is an "easement in gross." For example, you may decide to allow your neighbor to use your property to access the lake that's only behind your house.

This easement does not transfer to a new buyer, but is between you and the easement holder. This means that if the neighbor moves, you don't have to grant the same easement, or any easement at all, to the new owner.

Utility easements are often a problem because if you want to build something such as an in-ground swimming pool on your own land, you might be unable to do so if there are pipes and cables in the way. Likewise, if the utility company has an easement to erect poles or power lines, your property value could take a nosedive. s.

It's possible, in some cases, to remove an easement from your property. Some of the ways to remove an easement include the following:

• Bringing a lawsuit to contest the easement.
• The easement has expired.
• The easement is no longer usable through no fault of the servient property owner.
• The easement holder signs a release to the servient property holder, removing the easement.
• The servient property owner purchases the dominant property, thereby removing the easement.
• The dominant easement holder gives up the easement by transferring the easement in a deed to the servient owner.

Real estate law and easements are tricky, so hiring a real estate attorney is a good idea when trying to discover what hidden issues come with the property. If you find that the property you want comes with an easement, decide if it's the type of easement you can live with or whether you should walk away.

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Easement Agreement

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An easement agreement is a legal contract allowing someone to use or access another person's commercial or residential property for a specific need and period. It grants a non-possessory interest in the land, meaning the person with the easement does not own the land but has certain rights to use it. In this blog post, we will discuss the concept of easements and understand the primary elements of an easement agreement.

Essential Elements of an Easement Agreement

The essential elements of an easement agreement are as follows:

• Identifying Parties Involved: Identifying parties involved in the easement agreement is essential to avoid confusion. These parties include the grantor, the property owner granting the easement, and the grantee, the individual or entity receiving the easement rights. It is important to provide both parties' full legal names and contact information.
• Describing Easement: A comprehensive description of the easement should be included in the agreement, covering its location, size, and boundaries. This section should incorporate a legal description or a map illustrating the specific area of the property granted for use.
• Stating Purpose and Scope: The purpose for which the easement is granted must be clearly stated in the agreement. Whether for accessing a public road, utility lines, or other specific uses, the agreement should outline the intended scope and limitations of the easement. It ensures the easement purpose remains clear, minimizing potential misunderstandings or conflicts.
• Determining the Rights and Responsibilities: This section should specify the rights and responsibilities of both the grantor and the grantee. It should clearly define the activities the grantee is permitted to carry out within the easement area and any restrictions or limitations the grantor imposes. For instance, if the easement is for utility lines, the grantee may have the right to install and maintain those lines, while the grantor retains the right to access the area for repairs or inspections.
• Addressing Maintenance and Repairs: The agreement should address the responsibility for maintaining and repairing the easement area. It should explicitly state who is accountable for the upkeep, including any structures, fences, or other improvements within the easement. Additionally, the agreement may outline how the costs for maintenance and repairs will be divided between the parties.
• Stating Duration and Termination: The easement agreement should clearly state the easement term, indicating whether it is temporary or perpetual. If the easement has an expiration date, the agreement should outline the process for renewal or termination. In the event of termination, the agreement should address the property restored to its original condition.
• Clarifying Compensation and Consideration: There may be cases where the grantor requires compensation or consideration for granting the easement rights. The agreement should explicitly state the amount or type of compensation, if applicable, and the payment terms and conditions .
• Covering Insurance and Indemnification: The easement agreement should cover insurance requirements to protect both parties. Also, the grantee may need to maintain liability insurance to cover any potential damages or injuries arising from using the easement. Additionally, the agreement should include an indemnification clause , which states that the grantee will hold the grantor harmless from any liabilities or claims associated with the easement.
• Including Dispute Resolution: The easement agreement should include provisions for dispute resolution to avoid potential conflicts. It may involve negotiation, mediation, or arbitration, outlining the specific process to follow in the event of a dispute. By establishing a fair procedure, the parties can seek a resolution without resorting to costly litigation.

Types of Easement Agreements

Easements refer to legal rights given to individuals or entities allowing them to utilize or enter someone else's property for a specific purpose. These rights are established through legal agreements and are important in property law . Familiarizing oneself with the different types of easements is essential for property owners and those seeking access or usage rights. Below are the different kinds of easements, with their characteristics and legal implications.

Positive Easements

Positive easements entail granting the right to use or access another person's property. They can be further grouped into the following subcategories:

• Right-of-Way Easements: Right-of-way easements, also known as easements of way, enable individuals to travel across someone else's property. This type of easement commonly applies to driveways, roads, or pathways providing access to specific areas.
• Support Easements: Support easements grant the right to have a structure on one property supported by the land of an adjoining property. This type of easement is vital for properties where buildings or structures depend on the stability and support provided by the adjacent land.
• Utility Easements: Utility easements allow utility companies, such as water, gas, or electricity providers, to install and maintain necessary infrastructure on a property to provide services. These easements ensure the proper functioning and maintenance of essential utility systems.

Negative Easements

Negative easements restrict or limit specific actions or activities a property owner can undertake. The primary subcategories of negative easements include:

• Easements for Light and Air: This easement prevents a property owner from constructing structures or vegetation that obstruct the passage of light and air to an adjacent property. While this usually benefits the property owner, it can sometimes hinder easy movement and construction rights.
• View Easements: View easements safeguard a property owner's scenic or panoramic view by prohibiting the construction of buildings or structures that obstruct the view. They are commonly utilized in areas with significant natural landscapes.

Prescriptive Easements

Prescriptive easements are established through continuous, uninterrupted use of someone else's property without formal permission. The subcategories of a prescriptive easement include the following:

• Open and Apparent Use: The property owner must be able to see how the property is being used. It should not be done in secret or behind closed doors.
• Continuous Use: The usage must be continuous for a set amount of time, usually several years.
• Adverse Use: The use must be without the property owner's permission and against their interests.

Key Terms for Easement Agreements

• Dominant Property: The property that receives the advantages of an easement, also referred to as the dominant tenement. The dominant property possessor can utilize the easement for a designated purpose.
• Servient Property: This property bears the burden of an easement, also known as the servient tenement. The possessor of the servient property can permit the possessor of the dominant property to utilize the easement.
• Easement Appurtenant: An easement connected to the land and benefits the owner of an adjacent property. It typically remains with the land and remains valid even if the ownership of the property changes.
• Easement in Gross: This easement benefits a specific individual or entity rather than an adjacent property. It does not transfer with the land and usually ends upon the easement holder's death or the entity's dissolution.
• Affirmative Easement: This easement grants the right to carry out specific activities on the servient property, such as crossing the land, installing utilities, or accessing a water source.

Final Thoughts on Easement Agreements

Easement agreements are essential legal instruments determining the rights and restrictions of using another person's property. By clearly documenting the easement provisions, parties can reduce misunderstandings and conflicts. Also, seeking professional legal advice and preparing a comprehensive easement agreement can guarantee a seamless and more secure real estate experience for all parties concerned.

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I am a regulatory transactional attorney with 16 years of in-house experience, largely in the gaming/gambling industry. I have negotiated various types and sizes of contracts from janitorial services for a small commercial building to multi-million dollar technology transactions. I also have a strong regulatory background that strengthens my ability to navigate contracts that are subject to stringent regulations.

Bobby E. Hill, Jr. is a native of Tuscaloosa, Alabama and holds undergraduate degrees in music and business administration from Xavier University of Louisiana. He received his Juris Doctor from the University of Miami School of Law where he was a staff and articles editor for the school’s Race & Social Justice Law Review and a student attorney in the institution’s Immigration Clinic. In addition to freelancing, Bobby is currently a litigation associate at Johnson & Freeman, LLC, a boutique litigation firm in Atlanta, Georgia, where he practices in the firm's Condemnation, Probate, Real Estate Litigation, Real Estate Transactions, E-Discovery and Business and General Civil Litigation Practice areas. In this role, Bobby has acquired appreciable experience in drafting memoranda of law for partners and senior counsel, and all litigation related pleadings including pleadings related to dispositive motions, discovery, appeals, and other post-judgment relief.

For the last 25 years I've focused on representing businesses and entrepreneurs in transactional law deals, including LLC creation, operation and sale of businesses; real estate sales and leasing; and general contract negotiation and drafting. While I've helped all manner of businesses work out a variety of contract and business matters, I am an expert at helping clients with buying and selling commercial properties including multi-family and office projects and buildings, subdivisions, and retail shopping centers. I am also a recognized expert negotiating leases for retail and office tenants and landlords. Over 25 years I've honed my skills a lawyer at one of the largest law firms in the world, an elite real estate boutique in Aspen, Colorado and a highly regarded firm based in Denver, Colorado, before starting my own practice in 2016. Since 2016 I've been helping my clients with real estate and business deals. I'm a commercial real estate and business expert with a passion for helping clients forge successful ventures in an efficient and understandable manner.

Jessica Molligan is an attorney with twenty years of experience in family law, bankruptcy, and litigation.

I am a Spanish-fluent corporate and commercial real estate attorney and broker licensed in New York and New Jersey. My pragmatic approach towards conflict resolution allows me to provide valuable advice to clients on avoiding issues of liability through effective risk management and strategic allocation of resources. I counsel businesses, developers, owners and investors on residential/commercial real estate and corporate transactions involving the acquisition, finance, development, leasing and disposition of all asset classes. In addition, I advise on joint venture partnerships and the negotiation, structure and drafting of operating agreements. Throughout my successful practice, I have held in-house counsel positions at large corporations, including JPMorgan Chase and Duane Reade, and had the privilege of working for the Department of Justice where I honed expertise in all aspects of mortgage-backed securities.

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What You Should Know About Easements and Rights-of-Way

Don't be startled to discover that you must “share” part of your land.

In certain types of real estate transactions, it's not until the middle of the deal that home buyers realize the land they’re purchasing with their home is not 100% theirs. They are startled to discover that they must allow their neighbors to “share” part of their land, or that the local utility company has a right to access a pipe buried in their back yard.

How can this be? In both examples, the properties have what’s known as an 'easement,'' otherwise known as a “right-of-way.” This easement grants other designated people the right to specific types of access. Easements can be granted to another person, such as a neighbor, or to an entity, such as an electric and gas utility.

A property easement is generally written and recorded with the local assessor’s office. The documented easement will show up when a title search is conducted and it stays there indefinitely, unless both parties agree to remove it.

Without getting too deep into legal details, here are the types of easements worth knowing about.

1. Right-of-way through your property

As a homeowner, you would probably assume that you’re purchasing the land around your home, front yard, back yard and driveway. But that’s not always the case. Often, when you review the preliminary title report, you may discover that someone actually has a right-of-way through your property.

This is common in the case of a long driveway or a home that may be set back from the street. It could have been that in order for a neighboring home to have been built, that property’s owner negotiated with a previous owner to gain a right-of-way through the front of the parcel or driveway for the home you are buying.

In this scenario, you own the land, but the owner of the neighboring property has been granted right to pass through your property. In some instances, the previous owner might have been compensated for granting this access. The important thing to know is that easement carries over when a new owner assumes the property.

2. Right-of-way grant

If you’re the homeowner who needs access to a neighboring property, or you discover that the driveway or walkway to your home is actually not 100 percent yours, there’s usually nothing you need to do. It's just important to be aware of these conditions, and that this is not entirely your land.

Depending on the size of the easement and the type of land it covers, there may be some issues regarding maintenance. For example, it may be your responsibility to keep up the land: Mowing the lawn, shoveling the pathway or maintaining a fence. If there’s a maintenance ambiguity, check with the current seller to understand how she and the other owner worked this out in the past. Many times an easement like this, known as a 'Right-of-Way Grant,' has been on title through the course of three or four owners, making the original intentions or understandings not explicit. Understanding how the easement has worked in most recent practice is your best course of action.

3. Other types of easements

Anyone who lives in a condominium or some type of planned development likely spends many hours working on property they don’t own outright but have access to. Most likely, the condo or planned development’s homeowners association (HOA) actually owns those areas, but each resident or owner has a right to pass through, which is one obvious type of easement.

But some easements aren’t so obvious and take buyers and homeowners by surprise. A classic example is one in which a utility company, such as an electric and power company or a telephone company, has an easement through your land for the purpose of maintaining the utility.

There was a situation near San Jose, CA, in which the electric and gas utility had an easement through someone’s backyard. It had been on title for many years, but the existing owners didn’t know about it. One day, the electric company showed up with digging machines and materials and made a mess of the yard digging to fix a faulty line. Though the owners were shocked, there was nothing they could do.

Situations like these show why it pays to be cautious if an easement shows up in a property title search. Ask the title company, attorney or your real estate agent to retain all documents pertaining to the original easement in order to review the details. That way, you will know the exact location of the easement, its size and scope and how it's to be utilized.

Often, there’s not a problem with easements, but it’s still important to check. Any potential red flags might wind up affecting the value of your home.

In the case of the house in San Jose, for instance, what if the utility company had done permanent damage? What would be the homeowner’s recourse, if any? It’s best to vet these things before closing, rather than facing a serious real estate dilemma down the road.

Note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinion or position of Zillow.

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Easement: Definition, Types, and Examples

James Chen, CMT is an expert trader, investment adviser, and global market strategist.

What Is an Easement?

An easement, or easement agreement, is a real estate concept that defines a scenario in which one party uses the property of another party, where a fee is paid to the owner of the property in return for the right of easement. Easements are often purchased by public utility companies for the right to erect telephone poles or run pipes either above or beneath private property. However, while fees are paid to the property owner, easements can negatively affect property values in that unsightly power lines, for example, can lower the visual appeal of a piece of land.

Key Takeaways

• An easement is an agreement between two parties, where one is granted land access in exchange for a fee.
• Utility easements are the most common, such as when a telephone or power company runs lines through a property for which they've been granted an easement.
• A private easement agreement is a deal between two parties that gives one the right to use a piece of the other's property for their personal needs.
• An easement of necessity happens when an individual needs to use another individual's property so as to gain access to their own.

How an Easement Works

Used to describe a high-level agreement between the owner of a property and another party—either a person or an organization—a typical easement agreement outlines a form of payment by the petitioner to the owner for the right to utilize the subject of easement for a specific purpose.

An easement is unique to the agreement between the two parties involved. As such, easement agreements are structured so that the specific use of the property is explicitly outlined and there is a termination of easement given to the property owner. Such agreements are sometimes transferred in a property sale, so it's important for potential buyers to know if there are any easements on the property being evaluated.

Examples of an Easement

There are three common types of easement agreements. Which type of easement is granted will depend on the goals of the individual parties.

The first is a utility easement. This type of easement is an agreement between a property owner and a utility company that allows the utility company to run power lines, water piping, or other types of utilities through a property. Utility easement agreements are often included in a property's deed or held by a city or municipality.

The second type of common easement is a private easement agreement between two private parties. This easement is fairly standard in that it gives one party the right to use a piece of property for personal needs. A farmer may need access to a pond or additional agricultural land, for example, and a private easement agreement between his neighbor and himself gives him access to these needs. Further, if piping or a similar utility is required to be run through a neighboring property for a person's well system, the agreement is handled through a private easement.

Finally, there is a third common easement agreement referred to as an easement by necessity. This type of easement is more liberal in that it does not require a written agreement and is enforceable by local laws. An easement by necessity arises when one party is required to use another person's property. For example, when a person is required to use a neighbor's driveway to access his home, it's considered an easement by necessity.

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An easement is the grant of a nonpossessory property interest that provides the easement holder permission to use another person's land. There are different kinds of easements. If an easement appurtenant is granted, it involves two pieces of land, where one serves as the servient tenement that bears the burden, and the other the dominant tenement , which benefits from the grant of the easement and has permission to use the servient land in some manner.

While there are several different “kinds” of easements, there are two “types” of easements specifically: affirmative and negative. 

• An affirmative easement gives the easement holder the right to do something on the grantor of the easement's land, such as travel on a road through the grantor's land. 
• On the other hand, a negative easement allows the easement holder to prevent the grantor of the easement from doing something on their land that is lawful for them to do, such as building a structure that obscures light or a scenic view.

Easements can be created in a variety of ways. They can be created by an express grant, by implication , by necessity, and by adverse possession . Easements are transferrable and transfer along with the dominant tenement.E asements can also be terminated. An easement can be terminated if it was created by necessity and the necessity ceases to exist, if the servient land is destroyed, or if it was abandoned.

Illustrative Cases :

See e.g., Corrarino v. Byrnes, 841 N.Y.S.2d 122 (N.Y. App. Div. 2007) ; Spier v. Horowitz, 791 N.Y.S.2d 156 (N.Y. App. Div. 2005)

[Last updated in October of 2022 by the Wex Definitions Team ] 

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• property & real estate law
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• wex definitions

What is an Easement

For the creation of an easement to be legally binding, the document must be filed with the county Recorder. Defining the exact location, nature, and purpose of an easement in a deed or other legal document creates an “express easement.”

Types of Easement

Utility easement, private easement.

Private easements occur when a property owner sells an easement to an individual. This may be for a number of reasons, including giving a neighbor driveway access, or sharing a sewer line or well with a neighbor. Before granting a private easement, or purchasing a property that has this type of easement, it is vital that the property owner or potential buyer review the documents carefully, as a private easement often limits what the property owner can do on or around the defined area. For example, a property owner who has granted a solar access easement to his neighbor may not be allowed to plant trees or construct buildings, either of which would block sunlight, next to the easement

Easement by Necessity

Prescriptive easement, public easement.

A public easement grants a certain defined area of land for public use. An example would be the granting of public access of a portion of the landowner’s property for a park or touring.

Easement by Prior Use

Easement rights.

An easement holder is entitled to do whatever is reasonably necessary to fully utilize the property for the purpose for which the easement was created. His rights under an easement do not allow, however, the imposition of an unreasonable burden for the property owner. The property owner may also use the land as long as such use does not interfere with the purpose of the easement.

Transferring an Easement

Duration of an easement, trespass upon an easement, terminating an easement, related legal terms and issues.

( Getty Images )

What Is an Easement? Why You Might Have to Share Your Property

Sure, it has the word “ease” in it, but most home buyers don’t find it easy to understand.

The term often crops up after buyers have made an offer on a home that’s been accepted, at which point a title search dredges up the easement—which is essentially the legal right for someone else to use the property for a specific purpose.

Say what? You bend over backward to buy a home and now you have to share? Don’t worry, it’s not as bad as it sounds. Let’s unpack exactly what it means.

Types of easements

Easements come in many forms. Here are some of the most common you may encounter:

Right of way easement

This is where a neighbor may need to pass through the property via a driveway to access the main road. Or, say Property A and Property B share a driveway. “It’s primarily located on Property A’s land, but it splits and also goes off to Property B’s land. The owner of Property B can get an easement, which grants him legal access to the driveway, but the owner of Property A still maintains ownership of the land itself,” says Realtor® Kelly Hurley with Re/Max Advantage Plus in Minneapolis-St. Paul, MN.

Other right-of-way easements might be for a pathway through your property to a neighborhood playground, trail, or lake.

Utility maintenance easement

This easement is typically granted to utility companies to run power and cable lines on a property.

It’s particularly common in rural towns or newly developed cities that are tying into existing power lines, says David Nelson with the Imperial Home Team in Minneapolis.

HOA or condominium easement

If you live in a condo or home managed by a homeowners association , odds are these institutions own much of the property—or at least the public areas—while residents have rights to pass through.

How is an easement created and dissolved?

Easements are created when property owners are approached for permission to use their land. If an agreement is reached, it will be set in stone with a legal document such as a deed. While the homeowner who originally grants the easement may be compensated, subsequent homeowners typically are not, although the length of an easement may vary.

Here are the two main types:

• ‘In gross’  means that the easement applies only to the particular person you’re dealing with at that moment, whom you have decided to let access the property. When that person sells the property, the future owner is not included in the easement particulars.
• ‘Appurtenant’  is an easement that is attached to the land and therefore is part of any sale and thus transferred to the new owner.

An easement can be terminated if a court finds that it is being accessed beyond reasonable use. This is usually invoked when an easement substantially interferes with the landowner. For example, if an easement has been granted for beach access, but a new highway and parking lot bring in more crowds than were intended, it can be contested in court.

Since the property is owned by one person, this person typically assumes all costs for maintenance, insurance, property taxes, and the like, Nelson says. However, neighbors may decide to share costs or duties. Although there may be an implied arrangement, it’s always wise to get the particulars down in a written document, which can help prevent sticky situations when a property is sold.

As always, consult a real estate agent or real estate attorney if you have any questions about easements attached to a property you are considering and how they will affect you.

Cathie Ericson writes about real estate, finance, and health. She lives in Portland, OR.

Twitter Follow @CathieEricson

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What is an Easement in Real Estate?

Reading Time: 6 minutes

When you’ve found the perfect house, you may be surprised you have to work around a property easement. You’ll want to include learning about any easements among your steps to buying a house because the rights granted by an easement could affect your privacy and future plans for the property.  

Deciding between renting or buying your next home?

An easement grants someone else the limited right to use your land for a specific purpose. Common easements include access to shared driveways or sidewalks, utility company access to cables and piping, or access to a pond or hunting land adjacent to the property. In some cases, an easement can be unfavorable, such as when it allows someone to cross your property to reach theirs.

As a homebuyer, before you offer to purchase a house, you should determine if the property has an easement. If you’re working with a real estate attorney or title company , they’ll run an easement search on your behalf. 

To search for property easements on your own, follow these four simple steps: 

• Check with the county land records office or the county clerk to determine whether the prior deed shows an easement.
• Check with the utility companies to see if they have a property easement. 
• Order a property survey to identify any easements and where they’re located.
• Ask the owner for a warranty deed. A warranty deed shows that the grantor (or current owner) guarantees, or warrants, that they have legal title to the property. It also shows property easements. 

If you discover that the property has an easement, you’ll want to know if the property you’re buying is the dominant or servient property before making an offer . If you own the dominant property, you’re the easement user and can make full use of the property according to the terms of the easement, often whenever reasonably convenient.

If you own the servient property, you must allow the dominant property owner to use your property according to the easement terms. Here’s a rundown of the most common types of easements used in real estate today. 

Common types of easements and how they affect you as a property owner

Different easements have consequences and required actions based on the terms of each easement. Here is a list of the most common easements and how they can affect you as a property owner. 

Utility easement 

This type of easement gives public utilities – gas, electric, water, and cable/internet companies – the right to access and maintain equipment on your property to provide service to the community as a whole. This easement doesn’t give a utility company the freedom to do anything they want on your property, just the right to perform necessary actions for the community’s good. 

For example, the utility company may install underground lines or utility poles without your permission. A utility easement can also restrict your own actions on your property — like planting a tree – that could interfere with power lines. 

Public easements

These easements give the general public a right to use the area according to the easement. For example, if you have a sidewalk in your backyard that leads to a local park, people can use that sidewalk at any time if the city has an easement for it. 

Easement appurtenant

This type of easement is tied to the property itself and remains in place even if ownership changes. An example of this is an easement on a property that offers the only access to a private fishing pond shared by two neighbors. Even when the property sells, the new owners must continue to allow their neighbors access to the pond through the easement because the easement stays with the home.

Easement in gross

An easement in gross is tied to a person or entity, not the property, such as utility easements. Another example could be an easement that allows a friend to hunt or fish on your property. Because you granted the easement to a specific party, the easement is irrevocable until you, as the easement holder, pass away or sell the home. Upon the sale of a property, the seller may transfer the easement in gross to the new owner, but they can choose to deny the easement. However, if the easement has been granted to a public entity like a utility company, the public entity could challenge the denial in court. A new homeowner can also transfer the easement to a new servient property, but the dominant easement holder cannot transfer their rights. Such as in the fishing pond example above, your friend cannot transfer the easement to another person and give them rights to use your property. Neither can the utility company transfer its easement to another company without your consent as the property owner. Any new homeowner buying a new property must file for a new easement. 

Implied easements

Implied easements are not written contracts. However, if two neighbors have agreed to a specific use of the property a certain way over time, an implied easement can serve as a legal theory for the party who isn’t the owner to gain an easement. If a dispute arises, this habit or past use pattern will serve as grounds for the easement. An implied easement does not appear on a deed and could be disputed if the property changes hands.

Prescriptive easements

Prescriptive easements occur when someone openly uses your land regularly for a particular purpose over a specific time. For example, suppose your neighbor cuts across the property as a shortcut. They may not have an official road, but continued use without objection from the property owner could create a prescriptive easement.

Another example of a prescriptive easement would be when a homeowner allows the neighbor to use their boat dock. The neighbor never specifically asked permission but has been using the boat dock for the last five years. The neighbor could get an easement of prescription to continue to use your property for such activities in the future.

Easements by necessity

Easements by necessity can be granted out of an absolute need if your property comes between your neighbor and access to their land, such as a public road or a sidewalk. This can also happen in landlocked situations if your property is behind another property with no road access. An easement by necessity can be either implied or written, based on the fact that the other party must be able to fully use their property.

How can you deal with a negative easement?

Once in place, an easement stays with either the property or person depending on the type of easement described above. Change in ownership does not always provide grounds to revoke an existing easement. As the new owners, you must abide by the easement terms. If you want to take action on an easement, you can contact a local real estate attorney in your area to help.

Some easements may also have an expiration date – instead of fighting an undesirable easement, you can simply wait until it expires. You could also talk to the party involved to see if they’ll release their easement rights. If that approach fails, another remedy is to offer to purchase their land . Merging the two properties under one owner will cancel the need for the easement.

If you can terminate an easement, you need to record the termination with the local recorder’s office. Recording the termination will also help you if there are issues in the future. 

As a new homeowner, you may have some rules to follow in connection with an easement on your property. When you understand the type of easement placed on the property, you’ll be in a better position to decide whether to contest the easement or allow it to stand.

Redfin does not provide legal advice. This article is for informational purposes only, and is not a substitute for professional advice from a licensed attorney.

Title Forward is an affiliate of Redfin. You are not required to use their services. See our Affiliated Business Disclosure .

Hannah is part of the content marketing team and covers topics related to home trends, personal finance, decor, and more. She particularly enjoys writing about real estate trends and home improvement.

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Top Five Ways That Real Estate Easements Are Created

Learn the legal ins and outs of passing through your neighbor's land

How Are Easements Created?

Easement by agreement, easement by conveyance or right of way, easement by necessity, easement by condemnation, easement by prescription, frequently asked questions (faqs).

Real estate easements represent the legal right of one party to use part of the land owned by another party for a specific purpose. An easement can be affirmative, which gives permission for the holder to execute a certain action. Or it can be negative, which prevents the grantor from doing something on the property.  

Key Takeaways

• Easements provide the right to use property that belongs to someone else
• Some types of easements must be agreed upon, while others are initiated by certain triggers.
• The rules and legal procedures around easements vary state by state.
• If you notice a neighbor using your property without your permission, ask them to stop before a prescriptive easement automatically goes into effect. 

Generally, real estate easements transfer with the ownership of the property. Easements that transfer with a property are said to be "running with the land." There are many reasons why one entity might want or need to use the real property of another. As such, there are many ways that easements can be created. It's smart to understand how easements work whether you own property or are considering buying property in the future.

An easement by agreement is a legal document outlining the terms  when one owner of a property needs to use part of their neighbor's property. Suppose, for example, two owners of adjoining parcels of land share a road on the property of one of the owners to access a main highway. An agreement might be created to set out how the costs of maintaining the road would be shared. The terms would also set up an easement for the owner who needs to pass through his neighbor's property to do so unrestricted.

Easements by conveyance are included in property deeds and provide access without ownership. For example, continuing the right-of-way example above, say a landowner sells the back 20 acres of his 40-acre plot, and the 20-acre plot does not have public road access. The seller can include language in the deed that conveys, or gives, the new owners of the lot access a road through his plot so they can reach to the main road unrestricted.​

Easement laws vary by state. Check all state rules and regulations surrounding easements before entering into any type of legal contract.

An easement by necessity occurs when one landowner sells a portion of land to another party, but that property has no access point except through land retained by the original owner. There are two requirements to qualify as an implied easement by necessity:

• Both parcels of land must have been under single ownership prior to the sale
• The easement must have become necessary at the time the property was split. 

Though the owner of a property might disagree strongly with the "public good" statement, the government might condemn a property or portion of a property under the laws of eminent domain to use it for a public project. An example would be easement by condemnation of a strip of a property for a new highway.

A prescriptive easement is when someone receives a legal easement by default simply because they used the property owner's land in a specific way for a certain period of time. 

The length of time a person can use another's property before claiming the legal right to use it varies among the states, but after a certain number of years, user might be able to claim an easement by prescription. 

Generally, for this to happen, the use of the property must have been without the permission of its owner, but visible and open to the knowledge of the owner. Thus, by not stopping the access, the owner could be forced to allow the easement by prescription. The original landowner of the driveway would then need to legally terminate the easement in order to stop the person using the driveway.

Can a property owner block an easement?

It depends on the nature of the easement. If the easement transferred with the deed, then it will likely remain in force regardless of the property owner's current wishes. Legal action may be required if someone is using an easement illegally or if you think the property lines are misunderstood.

How can you find easement information on a property?

A property deed should list both public and private easements. If you don't have access to the deed (while house hunting, for instance), request a copy through the county or city courthouse. You may need to pay a minor fee in order to receive a copy of the property deed.

What is a utility easement?

A utility easement grants access to land when it's needed for utilities-related services such as water, sewer, energy, broadband, or other communications. An easement may be for existing infrastructure, or may be created to address future services.

Cornell Law School Legal Information Institute. " Easement ."

Cornell Law School Legal Information Institute. " Running with the land ."

City of Concord, New Hampshire. " Sample Agreement to Convey an Easement ."

Middlesex County, New Jersey. " Deed of Right-Of-Way Easement ."

Cornell Law School Legal Information Institute. " Implied easement by necessity ."

Cornell Law School Legal Information Institute, " Easement by prescription ."

County of San Mateo. " How Do I Find Out About an Easement on My Property? "

Legislative Information System Virginia. " Code of Virginia - § 55.1-306. Utility easements ."

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Terminating an Easement

(This may not be the same place you live)

  What are Easements?

Easements are a legal concept in real property law which provides one individual with the legal right to use another individual’s property for a specific amount of time or for a specific purpose. Easements provide individuals with legal rights to pass through other individuals’ pieces of property, so long as their usage is consistent with the easement restrictions which were specified.

Although easements give a possessory interest in a piece of property for a certain purpose, the owner of the land still retains the title to the property. Easements may be provided to anyone, including:

• Private parties;
• Government agencies; and

There are several common types of easements, which include:

• Power lines;
• Cable television lines, although they are usually underground; and
• Public utilities.

Easements are governed by real property law because they are associated with parcels of real property.

Are There Different Types of Easements?

Do i have to give an easement, how to determine amount of compensation for easement, do easements ever end, what are the ways to terminate an easement, do i need the advice of a lawyer concerning the termination of an easement.

Yes, there are different types of easements as different states may recognize different types, depending upon the property laws of that state. There are three general categories of types of easements, including:

• An easement by prescription;
• An easement by necessity; and
• A negative easement.

An easement by prescription, or a prescriptive easement , is an implied easement which an individual gains by adverse possession. An individual may acquire an easement by adverse possession when they use that portion of the land, without permission from the owner, for the period of time which is required by the law of the state in a manner which is:

• Uninterrupted;
• Hostile; and

An easement by necessity is an easement which is created by the law instead of by an agreement between neighbors or by a specific promise. In some cases, the law will imply the existence of an easement to achieve just results.

A common example of this type of easement includes which a parcel of land is landlocked, meaning that it cannot be accessed except by traveling over another parcel of property. In this situation, the law will create an easement by necessity to allow the owner of the landlocked parcel to access their own property by using another individual’s property.

Negative easements create obligations or restrictions regarding what a property owner can or cannot do on their property or how they can use their property in a manner which would otherwise be legal. Generally, negative easements are treated as restrictive covenants.

A common example of this type of easement includes situations where buildings are being built which may obstruct views from existing buildings. For example, if a new building was being built at the beach, an existing hotel would not want their ocean view blocked by the new building. A negative easement would be used to address this concern.

There are also numerous other types of easements, including:

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

As previously noted, easements by necessity are easements which are created by law to permit an individual to have a right of access to their property. If an individual’s land is subject to an easement by necessity, they are not permitted to interfere with their neighbor’s use of the easement to access their home.

Additionally, some utility companies or cities are granted easements which are recorded in the plat records prior to any homes or buildings being constructed on the land. A utility easement is an easement which is granted to a utility company or a municipality which provides them the right to access and use an individual’s property for the purpose of providing a public utility, which may include:

• Electricity;
• Sewer lines; and

A utility easement attaches to a property deed and passes to all future owners of the property whenever it is transferred or sold.

It is important to note that there are some types of easements for which an individual may seek compensation and there are some which the law allows that do not require compensation. The amount of compensation provided for a private easement is typically negotiated in the real estate contract.

When an individual is negotiating an easement, it is important to take the following steps:

• Specify the scope of the easement;
• Negotiate a price; and
• Record the agreement in writing.

It is very important to specify the scope of the easement when an individual is granting a private easement to another party. For example, if an individual is granting their neighbor the right to use their private fishing lake or pond, they should ensure they specify the terms of the easement, including:

• The times the easement can be used;
• The location of the easement; and
• Any other restrictions.

It is important to negotiate a price when an individual is negotiating an easement. An individual should search the local records to obtain an idea of the general price for such an easement.

For example, if an individual is allowing another individual to enter their land and access their pond on a temporary basis, the individual may wish to charge a fee such as $100 per year. On the other hand, if the individual is allowing the other party to access the pond on a permanent basis, it may be acceptable to negotiate for a higher fee for the easement.

It is very important to get the easement agreement in writing. The agreement should be signed by all of the parties involved and be notarized.

Once the easement has been fully executed, the individual should file the easement in their local county’s land records office.

Generally, an easement runs with the land. This means, when the ownership of the property changes, the easement remains and has no set termination date.

However, an easement may be given conditions including time limits. In some cases, an easement may be terminated, depending upon the type of easement.

In order to terminate an easement, there must be a condition for the purpose of the easement which has changed, which may include:

• The purpose for creation of the easement no longer exists;
• Ownership of the land where the easement sits and of the easement merges into one owner;
• The owner of the land releases the easement;
• Abandonment of the easement;
• Nonuse if it is a prescriptive easement ;
• Adverse possession by the owner of the land which is affected by the easement;
• Court decision of a quiet title action against someone claiming an easement; or
• Misuse of the easement.

It is essential to have the assistance of a property lawyer concerning the termination of an easement. Terminating an easement affects an individual’s long term property rights whether they are the owner of the easement or the owner of the land upon which the easement sits.

Easements can be common on real property. If you are a landowner, you have the right to use your property as you see fit, including granting easements.

In some cases, however, it may be difficult to locate an easement on your property. An easement may also interfere with the use of your property.

Your attorney can help with any easement issues you have, whether you are negotiating an easement or you are having issues with an existing easement. Your lawyer can assist you with ensuring your rights are protected as well as ensure that the property transaction is properly recorded .

Your attorney can also assist you with determining if there are any valid easements which exist on your property. If you have to go to court, your attorney will represent you.

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Jennifer Corbett

LegalMatch Legal Writer

Updating Author

Jennifer joined LegalMatch in 2020 as a Legal Writer. She holds a J.D. from Cumberland School of Law and has been a member of the Alabama State Bar since 2012. She is a certified mediator and guardian ad litem. She holds a B.A. in Criminology and Criminal Justice and a B.A. in Spanish, both from Auburn University. Jennifer’s favorite part of legal work is research and writing. Jennifer enjoyed being a Law Clerk for a distinguished Circuit Judge in Alabama. She is a stay-at-home mom and homeschool teacher of three children. She enjoys reading and long evening walks with her husband. Read More

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The most common types of easements you're likely to come across.

If you haven’t come across the word “easement” before, it’s a real estate term that means someone’s right to access or use another person’s property. Many of us have easements on our property to allow for electric and plumbing companies to operate, while others might need one for more in-depth projects.

It’s important to look out for any easements on a perspective or current home to make sure you’re satisfied with how these agreements will affect your lifestyle and future home value.

What is an easement?

An easement is a written or verbal agreement between the owner of a piece of land and another entity, where the owner grants the entity rights or use of their property in one way or another. In some cases, the entity will provide monetary compensation or some service in exchange for the use of the owner's land. There are both voluntary and involuntary examples of easements.

For example, if person A owns their home, they will allow person B to use their land, or a piece of it, for a certain purpose. The most common uses of property easements are utilities. A plumbing company may have an easement on land to install pipes under the home. A telephone company or an electric company may have an easement on a piece of property to install needed poles and equipment.

Negative easements

A negative easement prevents something from happening or being built, rather than allowing access to another entity. An example of this could be if you are denied the rights to build a pool because it interferes with sewage, another neighbor’s property or if it would be structurally unsafe.

How to find out if there is an easement on a potential property

There are a few ways you can find out if there is an easement on a potential property. The first way is to ask the previous owners. This can be a quick solution, but it’s possible they don’t know the answer, or haven’t encountered an easement that you might in the future. To get a more confident answer you can contact utility companies, as well as visit your local land record office. They usually have a map of easements that could get you some answers.

What can an easement mean for you and your property?

An easement on your property could be something simple or it can be a bigger headache. Some easements may affect the curb appeal of your home or its value, like living near wind turbines or having large electrical poles on your property. An easement could also mean having a sewage or electricity company come into your backyard for a yearly checkup, which is standard. You could also have a neighbor who shares your driveway to access their home.

There are many ways an easement could affect your experience in a home. It may be low or high maintenance and is often something you don’t have control over. It’s important to stay in the know about easements so you’re prepared for what may come up in the future. 

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An easement or a lease - the court decides

The high court has decided that a document purporting to grant a lease of a right of way in fact created an easement..

An easement is a right over one property that benefits another property, such as a right of way or a right to use a drain. The right can be granted so that it continues indefinitely (a freehold easement) or for a fixed period of time (an easement for a term of years).

An easement for a term of years is often called a lease of easements, which leads to muddled thinking.

A person drafting a lease of easements begins with a lease of land and adapts it to grant a lease of rights. The resulting document may include a demise, forfeiture provisions, reserve a rent and include assignment provisions. Trying to interpret it can be difficult. Does it grant a lease or create an easement for a term of years? This was one of the questions that the court had to answer in the case of De La Cuona v Big Apple Marketing Limited . The decision dates back to April last year, but the transcript has only recently become available.

Big Apple Marketing Limited (the "beneficiary") had the benefit a lease of easements allowing it to park two cars in a small car park owned by Bernadette De La Cuona (the "owner"). The owner argued that the lease of easements created a lease that was void for non-registration at the Land Registry and that, even if the document created an easement, a right to park was not capable of being an easement. If the owner was correct in either assertion, the beneficiary no longer had a right to park on the owner's land.

The lease of easements

The judge analysed the terms of the document. The lease of easements contained a large number of terms that were consistent with the document being a lease. It used the terms landlord and tenant, purported to create a demise and reserve a rent and contained restrictions on use, a quiet enjoyment covenant and forfeiture provisions. All of these were provisions that would be expected in a lease.

However, the judge held that there were contrary indications that led to his conclusion that the document created an easement, not a lease. The crucial provisions were that the document only demised the right to use the parking spaces (not the spaces themselves) and did not grant the beneficiary exclusive possession of them; the owner could reallocate the spaces that the beneficiary could use. Also the rights were expressly stated to be appurtenant to the land owned by the beneficiary, which was another indication that the document created an easement.

Can a right to park be an easement?

Historically, the courts have been reluctant to hold that a right to park can be an easement. However, in recent years, a number of cases have upheld the principle that a right to park can, in some cases, be an easement. The issue is whether the grant of the right to park leaves the grantor without any reasonable use of the land over which the rights are granted. This is sometimes referred to as the ouster principle.

If the grant of a right ousts the grantor from any reasonable use of the land, it cannot be an easement. In certain cases, the extent of the ouster may be sufficient to grant the person with the benefit of the rights, title to the land itself - for example a right to build into airspace or the right to excavate and use a railway tunnel.

The judge reviewed the cases where rights to park have been held to create easements and concluded that the owner retained sufficient rights over the parking spaces so that the ouster principle did not apply. The document created an easement and therefore the beneficiary retained the benefit of its parking rights.

It is all too easy to draft an easement for a term of years as if it were a lease of property. In the De La Cuona case, the beneficiary was lucky that the judge interpreted the document as an easement. However, it is unsatisfactory that the parties had to go to court to establish the true legal effect of the document.

A number of problems can arise where the grant of an easement is made in the form of a lease with "landlord" and "tenant" covenants, particularly if the ouster principle applies. If, on its true construction, it is a lease, it may have the protection of the Landlord and Tenant Act 1954.

Even if it creates an easement, positive obligations may not bind successors in title as they will not be landlord and tenant covenants that pass automatically. Rents cannot be reserved out of an easement, only out of land, and assignment provisions are inappropriate given that the rights are appurtenant to land and not capable of being severed from it. Getting the terms wrong could be costly.

From these limited examples, it can be seen that drafting an easement for a term of years as if it were a lease can lead to complications. Drafting the easement correctly at the outset can prevent future problems when the legal effect of the document comes under scrutiny.

De La Cuona v Big Apple Marketing Limited [2017] EWHC 3783 (Ch)

This information is for general information purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Please contact us for specific advice on your circumstances. © Shoosmiths LLP 2024.

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