As you navigate land ownership and purchasing property, you may encounter road easements.
An easement is the legal right of a non-owner to use a part of another person’s land for a specific purpose.
Road easements often come into play when someone needs to access their property.
When there is no roadway between a given parcel of land and public roads, it can become incredibly difficult to legally use the land that you’ve purchased.
In this blog, we’ll discuss everything you need to know about road easements before you buy.
1. What types of easements are there?
There are two main types of easements: appurtenant easements and easements in gross.
Both of these types of easements can be used for ingress, egress, utilities, and drainage.
Here are the core differences you should understand.
These easements are automatically conveyed with the land they benefit when the land is sold or transferred (unless otherwise expressly stated).
They exist for the benefit of adjoining land, so think of it as an easement for ingress, egress, utilities, or drainage that crosses over a parcel of land that separates the property being benefitted from a public road.
So, if you have a parcel of land that you wouldn’t have access to without crossing an adjoining piece of land, then any road easements would likely be appurtenant easements.
Your parcel would be the “dominant estate” because it is benefitted by the easement.
The parcel over which the easement runs is known as the “servient estate.”
Even if the servient estate is sold or transferred, this does not break an appurtenant easement (even if it isn’t mentioned in the deed!).
Easements in Gross
Rather than benefitting the land, easements in gross are intended to benefit a person or company.
For example, an easement in gross may be given to a utility company by a country or state to run electric, telephone, or internet transmission lines.
This type of easement doesn’t benefit a piece of property, and the utility company doesn’t have to own any land nearby to obtain it.
Easements in gross do not run with the land, and these easements are on “servient estates” because they are not for the benefit of particular properties.
However, similar to the appurtenant easements, the sale of the servient estate does not terminate the easement in gross (even if it isn’t mentioned in the deed!).
2. Did you know there are also negative easements?
Most easements that come to mind are affirmative easements: they give the easement holder the right to do something (such as use a property for ingress or egress).
But there are also negative easements.
These allow the easement holder to prevent the owner of the servient estate from using the property in a specific way (such as a conservation easement).
3. How do you know if there are easements on a property?
Because easements don’t have to be written into the deed to exist, you may be wondering how you’d know if there were easements on land you were going to buy.
In some states, it’s legally required for sellers to disclose easements on their property, so you should have some idea if easements exist when you enter a purchase agreement.
However, if you’re purchasing a bank-owned home, then you may need to do some due diligence.
In order to find out, you’d want to break up your search based on the type of easement.
This type of easement gives permission to utility companies to install power lines, a cell phone tower, etc. on your property.
Call your local utility company or go to the county land records office or city hall.
You can ask a clerk to show you a map of the easement locations.
You could also get a survey of the property to show the location of any utility easements.
Private easements often come in the form of a path, driveway, sewer, or solar access.
If your title contains private easements, then you should get copies of the actual easement documents when purchasing the property.
You’ll be able to find a reference number on those documents.
The county clerk can also help you locate these private easements in the public records, so you can obtain a copy to keep with your deed.
Easement by necessity:
Here’s where it can get confusing for landowners or potential buyers.
Sometimes a legal easement doesn’t have to be written down to exist.
If it’s absolutely necessary to cross someone’s land for a legitimate purpose (like access to their home), then there may be an “easement by necessity.”
In this case, you cannot interfere with your neighbor’s legal rights.
If you notice this is happening, you may need to talk to a lawyer to find out your options.
A prescriptive easement is similar to an easement by necessity in that it allows someone to access another’s land for a particular purpose (like accessing their home).
However, it typically only comes into play after a set period of time.
For example, prescriptive road easements may be created if you had been using a part of a neighbor’s property for access without a formal easement for the past 20 years.
This essentially allows the easement holder to adversely possess a portion of the servient lot for a specific purpose.
Different states have different rules and regulations.
The best thing you can do is look up “easements” in the index of your state statutes so you can understand court decisions on prescriptive easements.
As you can see, there are a number of different easements that may exist on your property and not all of them will be easily searchable in public records.
To be absolutely certain that you have found all easements on your property, your best bet is to have a title search done.
4. What can I do if I don’t like people on my property?
Property owners are not able to interfere with the purpose of a legal easement.
For example, if an electric company with a utility easement has strung wires across its right of way, you’re not legally allowed to take them down or block their path.
Interfering with an easement can make you liable for damage and subject to court action.
If you feel like someone is illegally trespassing on your property or you have good reason to dispute the easement, then you should talk to an experienced local real estate attorney.
They can offer advice on the best way to proceed (especially if there’s nothing in writing).
5. Why do road easements exist?
Road easements exist for the purpose of ingress and egress – the right to enter and exit a property.
This need occurs when a parcel of land does not adjoin a public, government-owned roadway.
If you purchase a land that is itself “landlocked” then you would need a road easement to access the public road to enter and exit your property.
Buyers of homes and land should condition their purchase of the property upon having ingress and egress to a public road.
If you do not have this, then you wouldn’t be able to use the land or home that you’ve purchased.
You can ensure that you’ll have this by getting a land survey prior to closing on the property.
To have access without an easement, at least one boundary of the property must exactly coincide without gap or deviation with the edge of a roadway.
This is known as the right-of-way line.
If these lines do not coincide, then you (as the buyer) need to be certain that the property in question has an easement that provides the buyer the legal right to cross over whatever property lies between their property and the public road.
If you plan to live on the property, then you should also include the right to utility lines and pipes in addition to the road easement.
Without this, not only is the land difficult to live on, but it loses a lot of value.
You likely would have a hard time selling the property if you ever had that desire.
6. How do you create an easement?
Easements are typically created in documents (although they do not need to be).
Easements can be created in deeds, easement agreements, subdivision declarations, and condominium declarations.
All of these are recorded in the land records just like deed or mortgages.
If you’re interested in creating an easement, it’s best practice to create an easement in an agreement or declaration (rather than a deed) because this will help you address all of the issues pertaining to easements.
After you’ve drawn up the document, get it notarized by a public notary with two witnesses present.
7. What’s the difference between a private road and an easement?
A road easement provides someone the right to pass over someone else’s property to access their own.
Not all easements are road easements.
For example, some appurtenant easements are used by utility companies to place cell towers on people’s land.
To be brief, while all private roads are also easements, not all easements are private roads.
Private roads provide access in the same way that a road easement would, and it wasn’t until some state court cases started trying to define the meaning of “private road” that confusion occurred.
How a private road is defined will vary from jurisdiction to jurisdiction.
However, both road easement sand private roads are similar in that a municipality has no right to use or regulate either without the consent of the landowner or the imposition of a statute.
8. Who is responsible for maintaining a road easement?
The laws governing easements can be complicated.
However, the laws are fairly clear about who is responsible for maintaining an easement once it is in place.
The person or party using the easement (also known as the easement holder) is often the one with the duty to maintain it.
While the easement owners aren’t the owners of the land itself, they should maintain it as they are using it.
The landowner (easement owner) will retain most rights over it.
So, what does this mean when it comes to a road easement?
Easement owners will still be able to clear away brush or pave an unpaved road.
However, they can’t block any of the easement holder’s use or enjoyment.
They also are under no duty or obligation to maintain or repair the easement’s improvements.
They are able to do so if desired, but they are in no way required to.
9. How is an easement outlined?
Easements are given for specific purposes in a specific location (ingress, egress, utilities, drainage, etc.).
A road easement is provided for ingress and egress.
In most cases, easement agreements often outline the specific location in which the easement can be used on the servient estates.
So, if you have a road easement, you won’t be able to drive through your neighbor’s property wherever you want.
There will be a specific place outlined so that the easement holder cannot overexercise power provided by the easement.
10. Are there restrictions on how road easements can be used?
In general, easements must be used for their original purposes.
However, if there is a need for changes then their uses may be modified to suit reasonable development.
All that to say, just because you’ve granted a road easement (as an easement owner) doesn’t mean that an easement holder is able to use it for whatever they please.
For instance, if there was an event (concert, festival, etc.) occurring nearby, the easement holder wouldn’t be able to use the road or driveway as a paid parking area for the property (thus making money off of it).
That said, easement holders should be able to use and enjoy the agreement within reasonable bounds, and one or two nights of people parking on the driveway for a private party may not be a problem.
11. Can easements impact any renovations or additions?
This can be a huge question for land buyers looking to purchase a home or piece of land with the intention of building.
In this case, it’s especially important to know what easements exist on the property so you don’t create unnecessary legal complications that interfere with the easement holder’s right to use and enjoy what’s outlined in the easement.
12. Can easements be terminated?
Yes, easements can be terminated in a few different ways depending on who does it.
Here’s what you need to know.
By the easement holder
The easement holder may terminate the easement by executing, delivering, and recording a written release of the easement, also known as a quit claim deed, conveying the easement back to the easement owner.
By mutual agreement
If both the easement holder and the easement owner are in agreement, then they can execute and record a termination of the easement.
This document should contain a written release of the easement (a quit claim deed) by the easement holder conveying the easement back to the easement owner.
By doctrine of merger
If the easement holder becomes the owner of both properties (over which the easement runs), then there is a “unity of two titles.”
Owners have no need for an easement on their own property, and thus the easement will have merged out of existence.
A road easement gives you the right to access a part of someone else’s property to enter and exit your own.
They are commonly given to property owners with landlocked property, which means they would be unable to reach their property without a road easement.
The rules for easements vary by state, municipality, and the type of use involved.
Thus, it’s important to do research on the property you’re buying to understand if you have a need for any easements OR if any easements are currently on your property.
Consult your real estate agent or an experienced local real estate attorney who can help you with these details.
If the information regarding a road easement doesn’t already exist in the documents for your property, you may need to seek more information with your local county records or have a title search done.
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Disclaimer: we are not lawyers, accountants or financial advisors and the information in this article is for informational purposes only. This article is based on our own research and experience and we do our best to keep it accurate and up-to-date, but it may contain errors. Please be sure to consult a legal or financial professional before making any investment decisions.