Understanding Easements

An easement allows a party to use real property that belongs to another party. When purchasing a residential or commercial property, it is important to understand what easements affect the property.

Types of Easements 

An easement has a servient estate on which the easement is located on and a dominant estate which is given a right to use the easement. Easements should also have a time period to which the easement applies. There are several types of easements that can affect a property.

          Easement by Necessity. An easement by necessity is created when an owner of a landlocked property needs to cross the adjacent property of another in order to access his or her own property.  An easement by necessity can be created when one parcel of land is split into two parcels, making one of the parcels landlocked. An easement by necessary can be implied. This type of easement may be dormant for years; however, it is not extinguished due to non-use and is passed down automatically to future owners upon transfer of title to the property.

         Easement by Prescription. An easement by prescription occurs when a party uses the property of another for a certain period of time, in a way that is actual, open, and notorious — in a way that the property owner should be aware of. The period of time required in order to establish adverse possession creating an easement by prescription usually runs between 10 and 21 years.

         Utility Access Easement. Utility easements are used for infrastructure purposes, such as drainage ditches, electrical lines, water, stormwater and other uses. A utility company will often use utility easements to install and maintain the infrastructure located on a property.

         Conservation Easement. A conservation easement, also known as a conversation covenant, is created between a property owner and a land trust or governmental (city, county, state or federal) entity to restrict the use of a specified area of the property in order to preserve the wildlife and wild vegetation. A conversation easement typically “runs with the land” and is automatically passed down to future owners of the property upon transfer of title.

         Express Easement. An express easement is an easement that is created in writing when the owner of the servient estate grants the owner of the dominant estate the right to enter the servient estate’s property for purposes defined in the easement agreement. The purposes of an express easement can be maintenance of certain infrastructure and the grant of an ingress/egress easement in order to complete the maintenance.

Before purchasing commercial property, reach out to a commercial real estate attorney at Lotus Law to consult on the due diligence of the property, including an in-depth review of the title report and survey, which will reveal recorded easements and evidence of the use of easements.

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