You have finally found your dream house, but upon visiting it, you noticed that you can only access it via the driveway that crosses the property of the neighbor.
Will the driveway affect your purchase?
A cable TV company needs to install cable lines and wants to run the cables along the existing electrical poles. Should the cable provider negotiate with the electric company or the owners of the properties crossed by the poles?
These two scenarios can both involve an easement. Easements affect all kinds of real estate transactions. They are also used for historic preservation and conservation purposes.
But despite the prevalence of easements, a lot of people still don’t know about them, resulting in different problems that occur during their implementation, interpretation, and drafting.
What Are Easements?
Easements are property rights that give the holder an interest in a property or land owned by another person.
It is a non-possessory property interest allowing the easement’s holder to occupy the property or land or exclude other people from it except if they interfere with the use of the holder of the easement.
On the contrary, the land’s possessor may continue using the easement and exclude others from the land, except the holder of the easement.
Land that is burdened by an easement is known as “servient estate.”
Meanwhile, the person or land that benefits from the easement is called “dominant estate.”
When a specific piece of land benefits from the easement, it is considered as “appurtenant” to the property or land.
When only an individual personally benefits from the easement, not as the owner of the specific piece of land, this easement is called “in gross.”
Many easements are considered affirmative, which means they can authorize using someone else’s land.
Negative easements are less common and often involve the preservation of the person’s access to view or light through limiting what could be done on a nearby or neighboring property.
How Do Easements Work?
A legal agreement typically creates easements.
Easement disputes usually arise if the easement doesn’t have written evidence or if there are some defects on the easement document.
To prove an easement, below are the things you need to present:
- A complete and clear description of the location of the easement
- A written contract identifying the easement’s beneficiary and the real estate property’s owner
- Signatures of the grantee of the easement and the owner
- Period of time when the easement takes effect
Remember that it is recommended to have a written agreement, but it is possible to create an easement with no written document.
For instance, if the property that benefits from an easement has been landlocked, it is possible to create an easement by necessity.
To understand how an easement works, here is an example:
Ms. Williams is the owner of a piece of land bordering a forest famous as a spot for climbing and hiking.
Mr. Stevens, a hiking enthusiast, lives right next door, but his property isn’t near the forest.
He can only gain access to the forest through driving or walking to the public entry point so that he won’t trespass on someone else’s property.
Therefore, Ms. Williams grants Mr. Stevens a right of easement. It allows all of his property’s future and present owners to cross her property to access the forest. This easement will become part of the two properties’ deed.
Ms. Williams can also grant an easement to someone else to do something similar, but this doesn’t need to be added to her deed.
It is a kind of easement that usually expires upon a specific event or at a certain time, like the death of the person benefiting from it.
Does an Easement Affect Property Value?
It will depend on the situation. In general, an easement doesn’t affect the value of the property, but all situations are unique.
One common example of an easement is when a certain utility, like an electric company, gets access over or on a property.
It is a grant so that the utilities can maintain the services they offer.
What Is a Right of Egress?
The right of egress refers to the legal right to leave or exit a property. Most of the time, the right of egress is used hand in hand with the right of ingress, the legal right of entering a property.
Egress and ingress rights are essential to homeowners because they allow access to the property.
The right of ingress and right of egress are terms that you can commonly find in real estate law.
These rights of egress and ingress are applicable no matter the type of property involved, whether it is a rental or an owner-occupied one.
Egress or ingress rights are often obtained through an easement or the right of using the property of another individual for a particular purpose.
Egress and ingress easements, for example, might govern the use of the private road for reaching a property or the use of a shared driveway.
What Is an In Gross Easement?
An in gross easement is meant to benefit a specific person, either a company or an individual.
A good example of in gross easement is an easement rendered by a state or country to a utility company to run internet, telephone, or electric transmission lines.
This type of easement is not meant to benefit the particular piece of land, and the utility company might not be the owner of the nearby lands.
The easement is instead meant to give benefits to the utility company.
An in gross easement can be awarded to a certain individual that the landowner wishes to help but doesn’t want to benefit an unknown buyer or heir of the specific individual.
When an In gross Easement is Used
An in gross easement is used instead of an appurtenant easement so that if the individual that benefits from the easement moves away, dies, or no longer needs the easement, the property owner can terminate the easement.
Therefore, in gross easements don’t run with the land even when the person who benefits from the in gross easement owned land adjacent to the property of the landowner who provided the easement.
For this reason, in gross easements have servient estate but not dominant estates because they don’t benefit the specific properties in question.
Just like appurtenant easements, sale of a servient estate doesn’t terminate the in gross easement even if the deed that conveys the servient estate doesn’t mention the easement.
Example of Easement (Egress and Ingress)
A good example of easement is the right of way for the egress and ingress to the property.
Simply put, this is the right to travel across a part of the servient estate to leave or reach the dominant property or real estate.
This is why it is important to identify if a nearby or adjacent property owner has a right in crossing the property to use or enter their property if an easement has been established.
Easements might arise by operation or from an agreement of. An agreement for easement is often presented in writing and the parties that agree to it all need to sign on it.
Easements might also be set for a specific timeframe but is usually run with the property.
It means that although one party that agrees to it transfers or conveys his real estate property, the easement will remain applicable to the land that it affects every time a new party becomes its owner.
Can an In Gross Easement Be Revoked?
Since it is attached to an individual, an in gross easement is often a lifetime easement.
However, this can be revoked once the individual decides to sell the property.
If this happens, the in gross easement cannot be passed on to the next owner of the property.
It means that there is a need to make a brand new easement agreement with the new property owners.
What Is an Easement by Appurtenant?
An easement by appurtenant exists to benefit the adjoining land. Good examples of this are an egress, ingress, drainage, and utilities crossing over a piece of land that separates the public road and the property that benefits from the easement of appurtenant.
Appurtenant of easements, unless explicitly stated otherwise, are conveyed automatically with the land that benefits from it once the land has been sold or transferred.
These easements run with the land.
This means that an appurtenant of easement doesn’t need to be stated in the deed conveying the lands that benefit from it, even though doing so is a better practice.
The property that the easement benefits and for which it was made is known as the dominant estate. The part where the easement runs is called the servient estate.
When the servient estate is sold, the easement of appurtenant is not terminated in spite of the fact the easement is not mentioned in the deed that conveys the servient estate.
How Can an Appurtenant of Easement Be Terminated?
Termination of an easement is dependent on the specific purpose for which it was made. Here are several ways of terminating an easement of appurtenant:
It is possible to terminate an easement of appurtenant if the beneficiary of the easement walks away or abandons the easement.
When the circumstances that gave rise to the easement of appurtenant by necessity are dissolved or cease, the easement will be terminated.
The easement of appurtenant term of use expires.
Termination may take place if the parties involved in the easement of appurtenant arrive at a mutual agreement to have the easement terminated.
A court can have the easement by appurtenant terminated if the beneficiary of the easement is significantly interfering with the land ownership or use of the property of the owner.
What Is an Example of an Appurtenant of Easement?
As a landowner, Matthew may grant an appurtenant easement to a nearby parcel of land owned by Chelsea to allow her to cross Matthew’s property every morning to reach the public forest.
Matthew is the owner of a servient estate and Chelsea, whom the easement benefits, is the owner of the dominant estate.
Since the land owns the easement instead of a particular person, Chelsea can still use the easement if Matthew decides to sell off his property to Greg.
Similarly, if Chelsea sells her property to Priscilla, she can put the easement to use.
What Is an Easement by Necessity?
Easement by necessity is a common form of appurtenant easement. It is not made by a specific agreement or promise between neighbors.
Instead, the law implies its creation to attain just results.
Imagine two properties owned by different landowners adjoin one another in a way that one property is landlocked.
It means that there is no access to it except through passing over the second property. During such instances, the law will create an easement by necessity.
In effect, this is an easement that is placed on the servient estate, the non-landlocked land.
This allows the owner of the landlocked property to have access to their property, the dominant estate.
The Bottom Line of Easement of Appurtenant in Real Estate
Before you decide to purchase any piece of land, it is important that you know if there are existing easements since these can sometimes affect the property’s value.
Easements might also be inconvenient, depending on the easement’s nature.
But more often than not, there is no need to hesitate about buying a property because an easement is attached to it.
Prior to signing the agreement to buy a property with an easement, consider if this will have an effect on your use of the land or its resale value in the future.
How have you been effected by an easement of appurtenant? Leave a comment below.
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