Spend enough time in agriculture or real estate and you are bound to come across the topic of easements at some point.
Though easements are not just an agricultural or even rural land issue, they are certainly often discussed in these settings. It is important to know what easements are, the different kinds of easements and how they may affect your future plans or goals for specific lots of land.
Let’s go over some of the basics about easements and what both farmers and landowners need to know about them.
What is an easement?
To put it in the simplest terms possible, an easement is an agreement between a landowner and some other entity (neighbor, company, municipality, etc.) that gives that entity the right to access that land in one way or another.
Real Estate Exam Ninja defines an easement in an even simpler manner: An easement is a right to trespass.
Why would an easement be needed?
Easements are agreements that basically allow another person beside the landowner rights to use the property in some manner. Common examples would be power lines that run over or under and through private property, access to a gas line or pipe that travels across someone else’s property, access to a road that is needed to gain entry to another lot of land, access to common sidewalks or even an agreement that the land can be used only for certain uses.
Basically, if an easement is granted, then the party that does not own the land can use the land according to the agreement or easement type but they don’t actually hold the title to the land or own the property.
What are common types of easements?
There are many different types of easements. Some are more commonly encountered than others, especially depending on type of land and whether the land is located in a rural or in an urban setting.
Here are five common types of easements.
Express easements are created either in a property deed or through what is known as a deed of grant of easement. These types of easements are usually written up in a way that gives the original owner of the land – perhaps the seller of a lot of land – access to a certain part of that property.
For example, an express easement could be used to guarantee an original owner can still connect their retained property to a new sewer line that is going to be constructed, even though the construction is going to happen on land that they are selling.
However, while express easements can be written in a way that secures the right of a person to do something, they can also be used to guarantee a person does not do something with the land. These are called affirmative or negative express easements.
Express easements can be found at a county recorder’s office.
Though some easements are recorded in official ways, others are not written down at all. These are called implied easements.
This can happen when a landowner subdivides his land then sells a portion of it but neglects to include any easements that the original, undivided lot of land may have carried with it. As you can imagine, this could create issues and so the matter can often be resolved in court, where implied easements are often created.
A court will rule and create an implied easement if:
- The easement is needed in order to enjoy the lots as they have been subdivided.
- The easement was in place prior to the land being subdivided.
An easement appurtenant is one in which two landowners want to use an adjoining part of a property.
One of the most common examples of an easement appurtenant being put to use would be when a landowner needs to access a landlocked parcel of land. If they have an easement appurtenant in place, then they can access that land legally by driving over another person’s property.
This situation creates a dominant tenement, which is the property that benefits from the easement, and a servient tenement, or the property that the easement passes through or is burdened by the easement.
This type of easement can also be called an ingress and egress easement. They are very common in agricultural settings as farmers need to gain access to their land or to public roads that are accessible only by utilizing connecting property.
A prescriptive easement is a type of easement that grants one person the right to use another person’s property without permission. If you have ever heard the term “right of way” being discussed where easements are concerned, then you are likely dealing with a prescriptive easement.
Prescriptive easements, according to Real Estate Exam Ninja, “occurs if the property is used in an actual, open, continuous and uninterrupted number of years as specified by the law of the state.”
These easements are typically permanent and will transfer from owner to owner if the land is sold.
Easement in gross
The final type of easement we will cover in this blog post is an easement in gross. An easement in gross grants one person the right to use land as long as that land is owned by the current owner.
This setup is opposite to how an easement appurtenant is used. Unlike easements appurtenant, easements in gross are tied to the person. So, for example, once the owner is gone, the easement is no longer applicable.
Always discuss easements when buying land
Easements are common in farmland and other types of rural land. Whether you are buying or selling land, it is important to do your research and become familiar with any active easements on the lots of land that you are looking to sell or buy.
Advantage Realty and Land Management can help you navigate through the process of either buying or selling land, and we can make sure you are knowledgeable of every detail regarding the property, including easements.
Contact us today to discuss your land use goals.