Top Five Ways That Real Estate Easements Are Created

Jim Kimmons is a real estate broker and author of multiple books on the topic. He has written hundreds of articles about how real estate works and how to use it as an investment and small business.

Real estate easements represent the legal right of one party to use part of the land owned by another party for a specific purpose. An easement can be affirmative, which gives permission for the holder to execute a certain action. Or it can be negative, which prevents the grantor from doing something on the property.

Key Takeaways

• Easements provide the right to use property that belongs to someone else
• Some types of easements must be agreed upon, while others are initiated by certain triggers.
• The rules and legal procedures around easements vary state by state.
• If you notice a neighbor using your property without your permission, ask them to stop before a prescriptive easement automatically goes into effect.

How Are Easements Created?

Generally, real estate easements transfer with the ownership of the property. Easements that transfer with a property are said to be "running with the land." There are many reasons why one entity might want or need to use the real property of another. As such, there are many ways that easements can be created. It's smart to understand how easements work whether you own property or are considering buying property in the future.

Easement By Agreement

An easement by agreement is a legal document outlining the terms when one owner of a property needs to use part of their neighbor's property. Suppose, for example, two owners of adjoining parcels of land share a road on the property of one of the owners to access a main highway. An agreement might be created to set out how the costs of maintaining the road would be shared. The terms would also set up an easement for the owner who needs to pass through his neighbor's property to do so unrestricted.

Easement By Conveyance or Right of Way

Easements by conveyance are included in property deeds and provide access without ownership. For example, continuing the right-of-way example above, say a landowner sells the back 20 acres of his 40-acre plot, and the 20-acre plot does not have public road access. The seller can include language in the deed that conveys, or gives, the new owners of the lot access a road through his plot so they can reach to the main road unrestricted.​

Note

Easement laws vary by state. Check all state rules and regulations surrounding easements before entering into any type of legal contract.

Easement By Necessity

An easement by necessity occurs when one landowner sells a portion of land to another party, but that property has no access point except through land retained by the original owner. There are two requirements to qualify as an implied easement by necessity:

• Both parcels of land must have been under single ownership prior to the sale
• The easement must have become necessary at the time the property was split.

Easement By Condemnation

Though the owner of a property might disagree strongly with the "public good" statement, the government might condemn a property or portion of a property under the laws of eminent domain to use it for a public project. An example would be easement by condemnation of a strip of a property for a new highway.

Easement By Prescription

A prescriptive easement is when someone receives a legal easement by default simply because they used the property owner's land in a specific way for a certain period of time.

Note

The length of time a person can use another's property before claiming the legal right to use it varies among the states, but after a certain number of years, user might be able to claim an easement by prescription.

Generally, for this to happen, the use of the property must have been without the permission of its owner, but visible and open to the knowledge of the owner. Thus, by not stopping the access, the owner could be forced to allow the easement by prescription. The original landowner of the driveway would then need to legally terminate the easement in order to stop the person using the driveway.

Frequently Asked Questions (FAQs)

Can a property owner block an easement?

It depends on the nature of the easement. If the easement transferred with the deed, then it will likely remain in force regardless of the property owner's current wishes. Legal action may be required if someone is using an easement illegally or if you think the property lines are misunderstood.

How can you find easement information on a property?

A property deed should list both public and private easements. If you don't have access to the deed (while house hunting, for instance), request a copy through the county or city courthouse. You may need to pay a minor fee in order to receive a copy of the property deed.

What is a utility easement?

A utility easement grants access to land when it's needed for utilities-related services such as water, sewer, energy, broadband, or other communications. An easement may be for existing infrastructure, or may be created to address future services.