Easements are one of those real estate concepts on which it’s difficult to get a consensus. To some, they are harmless items that can be ignored. To others, they are a fatal encumbrance on a piece of property, restricting its use and diminishing its value. While both opinions may be true depending on the circumstances, the fact is that easements generally fall somewhere in between those two extremes. To understand why, it is important to have a general understanding of what easements are and how they affect real property rights.
In its most basic definition, an easement is a right of one individual to exercise a limited form of ownership or possession of the property of another individual. An easement can be affirmative, where person A is allowed use the property of person B for a limited purpose, or it may be negative, where person A can even prevent person B from using person B’s own property in certain ways.
Easements can also be held in different ways. For instance, an easement in property A can be held by whomever owns property B, and the easement would then pass to the next owner of property B. This is known as an “easement appurtenant,” and property B is known as the “dominant tenement.” Contrast this with an “easement in gross,” where the easement is held by a person in his or her personal capacity, meaning that it does not pass on to the next property owner. Any land burdened by an easement is known as a “servient tenement.”
Easements come into play often in residential real estate. A shared driveway, for instance, usually involves an easement for one or both of the neighbors sharing the driveway. When you buy a house with an easement, you take the house subject to the easement, which means that you’ll have to accommodate it. In the case of the shared driveway, for instance, even if the driveway was entirely on your property, you couldn’t build a fence that restricted your neighbor’s use of the driveway. Other easements take the form of a right-of-way for access to other areas, such as a public path through your property to access a beach. Most residential lots have easements for utility companies, which are set forth on the map of the property, known as a plat.
These considerations become even more important when you plan to build a home or add anything to property. You would then need to consult deeds, plats and other documents where easements would be recorded to determine if any additions would interfere. Of course, the entire process becomes considerably simpler with the assistance of a real estate attorney. With the help of a seasoned professional, you can feel at ease with easements.