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Easement Issues In Real Estate

by | Sep 11, 2021 | TIER

Easements in Real Estate: Understanding and Addressing Common Issues

Easements are colloquially defined as “the right to pass over.” There are many types of real estate easements, including but not limited to Utility, Drainage, Shared Septic, Fence, and Access Easements like Driveways, Roads, and Public Paths. Easement issues crop up with alarming frequency, mostly in rural areas.

Common Real Estate Easement Issues

  1. Boundary Line Disputes: If someone built a fence, structure, or driveway that you thought was on the property that you purchased but turns out to be situated on your neighbor’s property, you may need to get an easement or encroachment agreement from your neighbor to legally keep that fence, building, or access in place. Often, boundary line issues crop up that pre-date one or both of the current owners and don’t come to light until someone tries to buy or sell one of the properties.

  2. Negative Easements: A negative easement is an agreement not to do something, such as build a fence, block a view, or construct something that could negatively impact your neighbor. Whoever holds the easement is, in essence, preventing the other property owner from using their own property in a specific way.

  3. Damage: If there’s damage to property where an easement is located, the easement holder may be responsible for restoring the property to its original condition.

  4. Maintenance: Typically, the easement holder will be responsible for maintaining the property covered by the easement, for the specific use designated.

  5. Violation: Easements can be violated by the ones who hold the right to use easements or by the owners whose land is used. An easement owner might damage or misuse the easement, or the underlying property owner might try to restrict the use of the easement.

  6. Misuse: Easements can be misused. For example, an easement holder who was granted well rights for one house might decide to build another house on the same property, which could overburden the well. A typical legal remedy for the misuse or excessive use of an easement is an injunction to prevent uses other than those permitted by the easement granting document.

  7. Liability: Who’s liable for something that happens on an easement isn’t always clear, particularly if the issue of liability wasn’t explicitly spelled out in the easement agreement.

  8. Transfers: In most cases, easements are “appurtenant” to a property, meaning that they transfer with the property every time it’s bought or sold. But not always! Easement agreements can be structured differently. For example, an easement could end if the property is sold or the owner dies.

  9. Termination: If an easement is in place on a piece of property that you own, you can’t just unilaterally decide to terminate it. If you want to remove the easement, you’d need to negotiate with whoever has been granted rights to your property in order to vacate or change the agreement. One owner buying out the other is the most common way that an agreement gets released.

Timely Contract Solutions

When Buying: Easements are invisible, and there’s at least a chance you might not know about all the easements that exist on the property. Use TIER to substantiate what easement(s) have been granted. If you contract for a TIER before signing, the circumstances of the easement(s) should have a bearing on your offer price. If you contract after signing, your understanding of the easement(s) may affect contract terms and negotiations.

When Selling: Easements are generally invisible, so there’s at least a chance you might not know its existence on your property. Use TIER to identify the existence of, and circumstances regarding, easements on your property. This information substantiates your list price, attracts qualified buyers, and makes the transaction go smoothly.

The information in this post is not legal advice. Legal advice is based on specific facts. This information is necessarily general in nature.

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