What Is an Easement?

How Do You Get an Easement? When Do You Need One?

The purchase of real property conveys many rights

• You have the right to own and possess the property, to be present on the premises.
• You have the right to make improvements, changes, or modifications to the property.
• You have the right of “enjoyment” of the property, essentially the right to do as you please, provided you’re not breaking the law.
• You have the right to sell, donate, or transfer the property or to do nothing with or to it.

Do you have the right to prevent anyone else from coming onto your property? As a general rule, yes, unless that person or entity has an easement of access to your property.

What Is an Easement?

An easement is a legal right to enter, use, or cross another person’s property. An easement can be either express or implied:

• An express easement is one that has been put in writing, in either a real estate contract or estate document like a will. For example, a property owner may sell land and, in the contract of sale, expressly retain an easement over the sold land to allow the seller to access adjoining property they own.
• An implied easement, on the other hand, won’t be in writing, but rather is mandated by the circumstances. Most often, an implied easement is based on necessity. If a property owner has no other access to their land other than over the property of an adjoining landowner, a court will typically imply an easement. In addition, when a property owner allows another person to repeatedly use or cross their land for an extended period of time, an implied easement may arise based on this use.

What Are Common Types of Easements?

Most states recognize a number of specific types of easements:

• Utility easements—To have electricity, cable, water, sewage, gas, and other utilities, you generally need pipes, cables, and other structures on, under, or over your property. Courts have long held that utility companies have an implied easement of access to land to allow them to install, maintain, and repair equipment. In most instances, a utility easement won’t limit how you can use your property. Occasionally, though, a line or cable will need to go in where you wanted to plant a tree or build an outbuilding.
• Private easements—Aside from utility easements, private easements are the most common form of easement. A private easement is essentially a contract between two property owners. For example, you grant a neighbor the right to take water from a pond on your property or to use your sewer system. Sometimes, an easement will “run with the land,” meaning that the easement remains in force when the property is transferred, even if it is not specifically mentioned in the transfer documents. Before you purchase any real property, you want to check the land records for existing easements.
• Easements by necessity—Easements by necessity are those created by a court that looks at the facts and circumstances and decides that it’s reasonable for a person to have an easement. One thing to remember—the easement remains in effect only as long as the necessity remains. If you’ve been cutting through your neighbor’s property to access your own, but then you build a new driveway giving you access through some other part of your land, the old easement may no longer be needed.
• Easements appurtenant—Easements appurtenant are commonly implied in situations involving adjoining landowners, where one party does not have access to public property other than by going through your land.