KNOWING YOUR EASEMENTS
When it comes to owning real estate there are a lot of pieces of information that you need to be aware of such as taxes, liens, prior ownership, utility issues, and homeowners’ association dues. But one item that people often overlook is easements associated with their property.
What is an easement? Easements take numerous forms, but they are simply permission for someone to do something on a property that they would not otherwise be able to do. An easement, for example, can be as simple as allowing someone to travel on a pathway that runs across your land, or as complex as permitting several utility systems to be connected through your property. Because easements can have such a significant impact on your property, you should be aware of the many forms of easements.
Easements typically involve two properties: the dominant estate and the servient estate. The dominant estate is the party who owns, controls, and profits from the easement, while the servient estate is the party that is encumbered or responsible for obeying the terms of the easement. The three main forms of easements are express, prescriptive, and implied easements.
Express easements are established through a written document indicating that the dominant and servient estate owners have reached an agreement. Because an easement is a property interest in land, it must follow the Statute of Frauds. This requires that the easement be in writing and extend for more than a year. The easement should define the piece of land burdened by it, as well as the easement holder’s rights, meaning there has been an agreement between the owners of the dominant and servient estates.
A prescriptive easement is not a written agreement between the parties; rather, it is obtained in a similar way as adverse possession, but with a shorter time frame. A prescriptive easement is obtained by the open, notorious, adverse, and continuing use of another’s land over a period of 15 years. Another significant distinction is that, unlike adverse possession, there is no exclusivity factor in a prescriptive easement, which means you do not need to claim ownership or exclude others. For instance, if you walk an area through your neighbor’s yard every day without his consent and you do so for at least 15 years, an easement may be established that permits you to carry on with this use even after the property’s ownership changes.
The third kind of easement, known as an implied easement, is established by circumstance rather than by the intent of any one party. It might be established by necessity or by prior use. When a piece of property is sold and the transaction interferes with a continued use of the property, a prior use implied easement is created. As an example, when properties with linked utility systems are sold to different owners, the utility systems may remain connected due to an implied easement of former use rather than the new owners having to relocate the systems.
The other form of an implied easement is one by necessity, and this is when a sale or transfer results in an easement being strictly necessary. The most common example of this is when a landowner divides and/or sells parcels of property to different owners, leaving one of the parcels cut off from the road, also known as being “landlocked.” In situations like this, an implied easement by necessity can be created, as the landlocked owner requires passage over an adjoining parcel in order to access the road or to allow the passage of services such as mailmen and other necessary city services over an adjoining person’s parcel to reach another person’s landlocked parcel.
It is important to know what potential easements may exist on your property, and it is equally important to understand that these easements may not always be in writing or easy to discover. A thorough review of a property’s history can be necessary to determine any existing easements. If you are considering purchasing or selling a home, it is vital that you understand what easements affect the property.
If you are considering buying a home and are interested in potential easements you could encounter associated with the property, please contact the Law Office of Andrew Szocka P.C. at (815) 455-8430. Our expert team of attorneys can help you navigate your transaction and ensure you are aware of all aspects of your property.