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Easement Issues In Real Estate

by | Sep 11, 2021 | Title Issues

Easement issues crop up with alarming frequency, particularly in rural areas, and it’s no wonder!

Virtually every property has some type of easement on it, most commonly for utilities. And some easement agreements date back decades. More often than not, the easements were put in place by previous property owners, not even the current owners. Factor in that most easements are between two neighboring properties – and neighbors – and it’s easy to see why easement issues can become contentious. It often takes the expertise of an experienced real estate attorney to review an easement, draft an easement, or research an easement in order to ensure a successful outcome. 

What Is An Easement In Real Estate
In real estate, simply put, an easement is a right to use that a landowner grants to another person or organization, while still retaining ownership of the property. Easements can be temporary (granted for a specific amount of time) or permanent (perpetually attached to the property, unless the easement holder agrees to void the easement).

Easements When Buying A Property
When you’re buying a piece of real estate, it’s essential that you know what types of easements have already been granted, so that you know exactly what rights you won’t be getting when you purchase the property. Seemingly, this easement information would be clearly identified in your title insurance policy, but that’s not always the case. Many types of agreements and easements that are attached to a property are public record documents that aren’t covered by title insurance.

It’s also important to fully understand any easements that have been granted to the property you’re considering buying, and whether those easements are temporary or permanent.

Easements When Selling A Property
When you’re selling a property, you need to disclose the easement to potential buyers, and you also need to let the easement holders know that you’re selling the property. In addition, any easements that you agreed to should have been recorded with the County Recorder’s Office.

Types Of Real Estate Easements
The most common types of easements on a property include:

•utility easements (water pipes, sewer pipes, power lines)

•drainage easements

•shared septic easements

•access easements (driveways, roads, public paths)

•fence easements

Most Common Real Estate Easement Issues
Easement issues can be thorny, often pitting neighbor against neighbor. Easements can also be used as a tool to resolve conflict. Below are some examples of easement issues.

Boundary Line Disputes: If someone has 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 To Property From An Easement: 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 Of An Easement: Typically, the easement holder will be responsible for maintaining the property covered by the easement.

Violation Of An Easement: 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 Of An Easement: 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 For An Easement: Who is liable for something that happens on property that’s covered by an easement isn’t always clear, particularly, if the issue of liability wasn’t explicitly spelled out in the easement agreement.

Transfers Of An Easement: 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 Of An Easement: 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.

Legal Services For Easements
At Timely Contract, we provide fast, easy, and expert legal services for easement issues. Our experienced real estate attorneys can quickly:

review easement agreements

draft easement agreements

perform title research and due diligence to discover any easements

At Timely Contract we have local real estate attorneys who have experience throughout Idaho, including: Boise, Post Falls, Coeur d’Alene, Lewiston, Moscow, and Sandpoint.

We also have local real estate attorneys who have experience throughout Montana, including: Missoula, Billings, Bozeman, and Kalispell.

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

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