The existence of easements is an important consideration before purchasing property. You should be aware of their existence and what they are before purchasing real estate—especially in rural areas. So just what are easements? Easements are a non-possessory right to use another’s land for a particular purpose. In other words, easements give another person an enforceable legal right to use another’s land for a particular purpose. Right now you might be thinking “Wait, what?! Someone else can have a legal right to use my property for free?” The answer to this question is “Yes!” This is why it’s important to know what easements are and how they may impact your land
Easements come in two basic types: affirmative and negative. Affirmative easements give the easement holder to go on another land to do some act, such as a right away to cross the property. Negative easements give the easement holder the right to prevent the landowner from using her land in some way, such as blocking light or even a scenic view.
Affirmative easements can be: express, implied, by necessity, and by prescription. Express easements are created when a grantor (prior owner of the land) expressly allows another to use her land, typically in writing. Implied easements are those not expressly agreed to by the parties, but are inferred by a court based upon past use of the land and the parties’ past intent that an easement be created. Easements by necessity are created when an owner sells a portion of her land and the result of the sale is a landlocked parcel of land. Under this circumstance, an easement is implied only over a portion of a divided tract of land that blocks access to a public road from the landlocked parcel. Easements by prescription exist when a person uses another person’s property adversely (without permission) for the requisite period of time. If a person meets the requirements of an easement by prescription, they may obtain the right to continue to use the property in a manner consistent with their prior use of the property.
So how do you protect yourself from purchasing real property that is subject to easements? There are a few measures you can take. First, if you are a buyer with a real estate professional, speak with them, and put in writing, your intention to purchase land that is not subject to unwanted easements. Second, consider making the absence of easements a condition to closing. If an easement exists and you still desire to purchase the property, you may always waive the condition and proceed to closing. Third, pay close attention to your title insurance policy. The title commitment document contains the terms, conditions, and exclusions of the policy issued to you by the title insurance company. Within the title commitment document, the insurance company will except from coverage all known easements of record, each of which will be listed in the document. Make sure to discusses the easements listed in the title commitment with you real estate agent, title company, and attorney if needed.
You should be careful because title commitment policies will only notify you of easements that exist in public record. This means that there still may exist valid claims for easement on your land that have not been memorialized in public record. To protect yourself from these easements, make sure to get an affidavit (sworn statement) from the seller than they are not away of any other potential claim for easements that may exist outside of public record. Perhaps even speak with neighboring property owners about their knowledge of any easements on the property you intend to buy. If you follow this advice, you can offer yourself the greatest protection against unwanted easements on your land.