Types of Real Estate Easements: Essential for Exam Prep

Did you know there were various types of real estate easements? It’s not just the concept you should learn for the licensing exam, but also how to differentiate them and how they influence the property owner’s rights. When we’re talking about an affirmative or negative easement? Can a property owner block an easement? These and more questions we’ll be answering in this blog. Keep reading!

What Is an Easement in Real Estate?

Easements, along with liens and restrictive covenants, are a type of encumbrance in real estate. That is a restriction to use or transfer a property.

Imagine you own a large yard with a driveway that extends to the main road. Your neighbor’s house is behind yours, without direct access to that main road. Then, as a good fellow, you give your neighbor the right to use your driveway to access their house while retaining ownership of the driveway. Now, your neighbor holds an easement on your property.

So, an easement or easement agreement is a non-possessory interest in land that gives the easement holder (like your neighbor in the example above) the right to use the land for a specific purpose. The land owner retains ownership of the land, but the easement holder has the right to use the land in a limited way.

Like liens, easements can significantly impact a property’s use and value. A property subject to an easement may be challenging to sell or refinance, as the buyer must be aware of the easement and agree to abide by its terms.

However, it depends on the types of real estate easements. Some may benefit both the homeowner and the easement holder, while others may restrain certain property rights.

Breaking Down the Types of Easements in Real Estate

Affirmative v.s Negative Easements

Affirmative easements give the easement holder the right to use the property positively. For instance, a utility company may have an affirmative easement to run power lines across a property.

Other examples are:

• Access to cross a specific part of the property’s land.
• Donating land to organizations for preserving the environment there.

On the other hand, negative easements are like promises not to use the property in a certain way. They could be about architectural specifications or homeowner association rules.

These are some examples:

• A neighbor that has a negative easement that prevents others from building a fence that blocks their view.
• Not building hoses of more than one story high.

Expressed vs. Implied Easements

A written agreement between the landowner and the easement holder creates an expressed easement. This type of real estate is usually part of the deed and can be transferred with the property. For example, if someone sells a house with an expressed easement, the new owner must also respect that agreement. The same happens if the property is inherited. Sometimes, an owner can even reserve to use a part of the property they already sold.

An implied easement is different. It is not written down, and it’s just an implied agreement between two parties to use a property as long as the owner doesn’t disturb their right of enjoyment. Imagine a neighbor using part of your backyard to access a lake without your permission. In that case, it can exist as an implied easement.

Prescriptive Easement

Like implied easements, prescriptive ones are often not documented. A prescriptive easement can exist when someone uses a property they don’t own for many years without the owner’s formal permission and without their action against it. For it to be established, there must be continuous use of the land for a significant period as defined by state laws.

This means that if you allow someone to use your property for years, they could hold a prescriptive easement on it. Suppose you sue them after waiting too long. In that case, the jury can determine there was implied consent and, therefore, favor the easement holder.

The difference between implied and prescriptive is that the latter can usually be hostile because the easement holder’s use of the land can be contrary to the owner’s wishes.

Utility Easements

Utility easements follow state or local laws and grant utility companies permission to a property for a specific use. A common way this works is with an electricity company; they need access to your place to make repairs and maintenance.

This type of easement goes both ways. A utility company may have a specific kind of access limited to their work. But you could also have restrictions, like not planting trees that interfere with local power lines.

Easements by Necessity

Easements by necessity, also known as access easements, are created by the court to facilitate the use of nearby property. Typically, they occur when a piece of land is completely landlocked and cannot access the road except by passing through another property. They only exist if necessary to use a property or part of it.

Imagine you own land, and someone else lives nearby, but they are landlocked. Then, they must be granted an easement because otherwise, they couldn’t use their property. However, if another way of access is created, then the easement won’t exist.

Private Easements

These types of real estate easements are property rights an owner can create, sell, or give to another party. They are stated in the title and can be transferred to new owners if the property is sold or inherited. For example, imagine you have a vast land near a river, and your neighbor needs to install pipes through your property to access it to have more water for their farm. Then, you can create a private easement agreement.

Can a Property Owner Block an Easement?

Now that we know about the easements in real estate, this question comes up. If you don’t want an easement on your property, can you block it? Are they permanent? Well, it depends on the type of easement. Utility is mostly an obligation, and others set by law are difficult to block. However, people have better chances of blocking prescriptive easements. Either way, it’s better to know all about a property’s easements, at least the expressed ones, before doing any transaction.

Do Easements Run with the Land?

Yes, the property may change owners, but the easements will stay. That’s why it is so essential for you as a future real estate professional to inform your clients about the easements the property they want to buy has.

How Will Easements Affect the Property Owner’s Rights?

The easements themselves won’t take the ownership from the title holder; they only grant certain access to parts of it to a non-property owner for specific uses. Almost every property already has a type of easement, at least a utility one, and they don’t tend to interfere with the owner’s right to enjoy the property as they wish. However, they can in some cases. Let’s say you want to build a pool, but your space is on the road your landlocked neighbor uses to get to the main street. Then, you won’t be able to build your pool there because it will interfere with their easement over your land.

Summing-up

Knowing the different types of real estate easements is vital for property transactions. They could be beneficial for the parties involved. Still, they could also be troublesome in some cases, depending on your principal plans. To protect your principal’s interests, you must always disclose any information in this regard.