Easements are a frequent occurrence in home buying and closings. They dictate a legal right for someone to use the property for a certain purpose, even though the property is still owned by another party.
These are complicated elements of real estate transactions that clients often have questions about. Let’s take a look at what is involved in an easement and how it might affect your property sale.
What Is An Easement?
For home buyers and sellers alike, easements can be complex and difficult to understand. An easement refers to the legal right for another party to use the property for a specific purpose. It often appears after an offer on a home has been accepted, when a title search brings up an easement.
If you’re a homebuyer, you need to understand how an easement might affect your use of the property after closing as well as its impact on selling your property at a later date. Typically an easement is considered permanent after it’s created, no matter who owns the property going forward.
Some of the most common forms of easements include:
Right of Way Easement
This may refer to two properties that share a driveway, or a driveway that a neighbor uses to pass through the property to the main road.
If it’s primarily located on one neighbor’s land, the other neighbor may get an easement to grant him or her legal access, but the first neighbor still owns the land itself.
Utility Maintenance Easement
This type of easement grants access to utility companies in order to run power and cable lines on a property.
HOA/Condo Easement
Those who live in condos or homes managed by a homeowners association likely have easements that grant residents the right to pass through ( though the property is technically owned by the HOA).
Do I Need An Easement?
There are several instances in which an easement may be necessary, but it often depends on the individual situation.
For instance, if a survey reveals that the adjoining owner’s fence is encroaching onto the seller’s property, is a permanent easement the best solution for the buyer? This depends.
If the foot encroaches onto the neighbor’s property by one foot, we may recommend a license agreement instead of an easement. A license agreement is a personal agreement that does not “run with the land” and, in turn, can be canceled. This agreement can help both parties feel at ease.
But here’s a different example. Let’s say the adjoiner’s use of a seller’s property is for access to their own property, and this has been going on for decades with no easement of record providing for the rights and obligations of the parties.
Some form of an easement is likely appropriate in this situation. If both parties agreed to it, they would require a document that states what each of their rights are and details rules for maintenance and liability.
Can You Build On An Easement?
This is one of the most-asked questions we receive about easements.
Technically, yes, you can build on a property easement or a utility easement. There is nothing in the deed that says you can’t. However, most choose not to for their own peace of mind.
In the event that the owning estate of the easement ever has to access it, whatever sits on it may be removed. This may include shrubs, fences, pools and even a house addition.
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Every real estate transaction is unique. Easements need to be approached with that in mind. Rarely is there a one-size-fits-all solution that will work for homebuyers and sellers.
Are you buying or selling a home and need help with your title search? Investors Title Company is the region’s top title specialists and we’re here to help. Contact us today to get started.