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Easement Issues In Real Estate

by | Sep 11, 2021 | TIER

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

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’ll need to get an easement from your neighbor in order 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.

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.

Damage: If there’s damage to property that’s covered by an easement, in general, the easement holder will be responsible for restoring the property to its original condition.

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

Violation: Easements can be violated, by dominant property owners (the ones who hold the right to use easements) and by servient property owners (the ones whose land is used because they “serve” the easement holder). Dominant property owners might damage or misuse the easement, or servient property owners might try to restrict the use of the easement.

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 be a misuse of the easement. The 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.

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.

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.

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 the agreement. One owner buying out the other is the most common way that an agreement gets released.

TC Solutions Regarding Easements

When Buying. Use TIER for a legal opinion to substantiate what easements have been granted, before or after you sign. If before signing, your understanding of what easements exist will have a direct relationship to your offer price. If after signing, your understanding of what easements exist will have a direct relationship to contract negotiations.

When Selling. When selling, use TIER for a legal opinion of what easements have been granted. As a legal entity, easements can be invisible, There’s at least a chance you might not know about every easement on your property. Use TIER as a sales tool to substantiate your list price, attract qualified buyers, and make 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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