Exclusive and Nonexclusive Property Easements

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A property easement is the right to use the land of another without having an ownership interest.  There are two types of easements granted to the benefited party-easement in gross (exclusive easement) and appurtenant easement (non-exclusive easement).  An easement in gross is granted exclusively to an individual or entity.  When they sell the property, the future owner does not benefit from the easement.   An appurtenant easement is usually a perpetual easement that runs with the land and can be used by others.  When the owner sells the property, the future owner benefits.  Properties must be located next to each other for the appurtenant easement to be legal.  Easements are created in the following manner:

  • Grant or reservation.  A grant is a right to use the easement.  A reservation is when the owner reserves a portion of the land they are selling for their use. 
  • Implication.  There is an implied covenant that you can use the easement.
  • Necessity.  Easements that prevent land from being landlocked.  Form of implied easement. 
  • Prescription.  Continued use over a period of time. 

The instrument use for easements is a deed or easement agreement.  The instrument does not need to be recorded, but it’s a good idea so that future buyers are aware of any easements that may exist on the property.

Reasons for Easements 

A property easement is typically granted for the following reasons: 

  • Ingress and egress such as a shared driveway.
  • Utilities.  It is common for utilities companies to have easements to lay pipes, cables and telephone lines.
  • Access to make repairs.
  • For water. 
  • For grazing animals. 

Title Reports 

When you buy property, you will receive a title report which reflects existing easements that have been recorded on the property as well as any other documents affecting the title.  As part of your property due diligence, you should read the easement instruments and all other underlying documents carefully to determine use restrictions and exclusive right easements.  It is a good idea to have a real estate attorney look at the title documents as well.  A property survey should be ordered.  The survey will map the location of the easements so you can visually see where they are located on the property. This is especially important if you are going to be building additional structures or if you are buying raw land and developing it.  You would have to make sure the structures do not interfere with the easement which has been granted.  If it does, then you would have the choice of renegotiating the easement or changing the location of the building addition. There is also the possibility that you may have to find another property if you are unable to build where you wanted to.   If you have any questions about a particular easement, your attorney or property surveyor will be able to answer them for you.  

Use an Attorney

Property easements are complicated.  Before you grant an easement to someone to use your property, you should carefully review how it will impact your use as well.  Easements should be prepared and negotiated with the assistance of a real estate attorney.

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