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Buying

What Is an Easement, and Why You Might Have to Share Your Property

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What is an easement? Sure, it has the word "ease" in it, but most home buyers don't find it easy to understand. (See what we did there?) The term often crops up after buyers have made an offer on a home that's been accepted, at which point a title search dredges up the easement -- which is essentially the legal right for someone else to use the property for a specific purpose.

Say what? You bend over backward to buy a home and now you have to share? Don't worry, it's not as bad as it sounds; we'll unpack what it means below.

Types of easements

Easements come in many forms; here are some of the most common you might encounter:

  • Right of way: This is where a neighbor may need to pass through the property via a driveway to access the main road. Or, Property A and Property B may share a driveway. "It's primarily located on Property A's land, but it splits and also goes off to Property B's land. The owner of Property B can get an easement, which grants him legal access to the driveway, but the owner of Property A still maintains ownership of the land itself," says Realtor Kelly Hurley with Re/Max Advantage Plus in Minneapolis-St. Paul, MN. Other right-of-way easements might be for a pathway through your property to a neighborhood playground or lake.
  • Utility maintenance: This easement is typically granted to utility companies to run power and cable lines on a property. It's particularly common in rural towns or newly developed cities that are tying into existing power lines, says David Nelson with the Imperial Home Team in Minneapolis.
  • HOAs/condos: If you live in a condo or home managed by a homeowners association, odds are these institutions own much of the property -- or at least the public areas -- while residents have rights to pass through.

 

How is an easement created and dissolved?

Easements are created when property owners are approached for permission to use their land. If an agreement is reached, it will be set in stone with a legal document such as a deed. While the homeowner who originally grants the easement may be compensated, subsequent homeowners typically are not, although the length of an easement may vary. Here are the two main types:

  • 'In gross' means that the easement applies only to the particular person you're dealing with at that moment, whom you have decided to let access the property. When that person sells the property, the future owner is not included in the easement particulars.
  • 'Appurtenant' is an easement that is attached to the land and therefore is part of any sale and thus transferred to the new owner.

 

An easement can be terminated if the court finds it's being accessed beyond reasonable use, as in when it substantially interferes with the landowner. For example, if an easement has been granted for beach access, but a new highway and parking lot bring in more crowds than were intended, it can be contested in court.

Since the property is owned by one person, this person typically assumes all costs for maintenance, insurance, property taxes, and the like, Nelson says. However, neighbors may decide to share costs or duties. Although there may be an implied arrangement, it's always wise to get the particulars down in a written document, which can help prevent sticky situations when the property is sold.

As always, consult a real estate agent or real estate attorney if you have any questions about easements attached to a property you are considering and how they will affect you.

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