Understanding real estate easements

Is someone using part of your property without permission?
By: Robert J. Bruss: Inman News
Not many weeks ago, I wrote about adverse possession and "squatter's rights" for legally stealing title to real estate belonging to another owner. Just in case you missed it, that article explained the legal requirements of "open, notorious and hostile occupancy," plus payment of property taxes, for the required number of years in the state where the property is located.

To my surprise, that article provided many questions about the related subject of obtaining easements over a property, with or without the owner's permission. I thought every property owner knew about easements. But I was sure wrong.

WHAT IS AN EASEMENT? An easement is the legal right to use part of a real estate owner's property. Examples are the right to use a driveway, path or garden area of a neighbor's property.

Most easements are obtained by permission, such as for a utility easement over your property. To illustrate, the city has a 5-foot-wide easement along the northerly border of my property for a sewer easement.

But some easements are hostile, obtained without the property owner's permission. For example, without permission suppose my neighbor drives over my property to reach a street although he has other access to his lot. Although I tell him to stop driving over my land, if he continues doing so without permission for the number of years required by state law, he will acquire a permanent prescriptive easement over my land.

VIRTUALLY EVERY PROPERTY HAS EASEMENTS. Even if you own rural land, it is probably subject to one or more easements. Most easements benefit the property and are welcome. But a few easements are hostile without contributing any benefit to the property owner.

Easement examples include utility easements (above or below ground) for power lines, phone lines, TV cable, water pipes, sewer lines and gas lines. Utility easements are usually obtained without payment to the property owner in return for bringing utility service to the property.

Additional easement examples are recorded easements, such as a shared driveway when the subdivision was recorded, or easements for your water or sewer pipes over an adjoining lot.

A very rare easement is an easement by necessity. It is created by state law to reach a landlocked parcel. A lawsuit is usually required to obtain such an easement, which can greatly increase the value of a previously inaccessible property.

THE THREE BASIC TYPES OF EASEMENTS. There are three distinct types of easements that benefit or burden a property, depending on your viewpoint:

1. EASEMENTS IN GROSS AFFECT MOST PROPERTIES. Virtually every property is subject to an easement in gross. Public utility easements are examples. Most are recorded in the public records affecting each property.

However, sometimes an easement in gross was not properly recorded. But when it is obvious, such as an overhead power line or a public bike path over your land, it's hard for a property owner to deny awareness.

Underground easements in gross are a different matter, especially for water and sewer lines. To avoid unexpected surprises, property buyers should always obtain an owner's title insurance policy at the time of property purchase. Then, if an undisclosed underground easement is later discovered, the title insurer is liable for the diminished value of the property or the cost of removal.

To illustrate, suppose you bought your home and its owner's title insurance policy did not reveal any easements. Later, you decide to build a backyard swimming pool. To your surprise, you then discover a city sewer line through the middle of your backyard. The title insurer then becomes liable to remove the city sewer line or pay you the diminished value of your property.

2. EASEMENTS APPURTENANT BENEFIT ADJOINING PROPERTY. An easement appurtenant benefits an adjoining property, such as a shared driveway or a path over your property for a neighbor to reach their property. Most easements appurtenant were created when a subdivision was created and recorded.

Easements appurtenant have a "dominant tenement," which benefits from the easement, and a "servient tenement," which is burdened by the easement. To be valid, the easement appurtenant must be recorded against the title of the servient tenement. It is also usually recorded as part of the dominant tenement's title.

An example is an easement by necessity that is created over the servient tenement, which has public road access, and the landlocked parcel, which becomes the dominant tenement. Court action is usually required to obtain an easement by necessity, thus creating the easement appurtenant.

3. PRESCRIPTIVE EASEMENTS ARE NON-PERMISSIVE. The third easement type creates the most legal problems. It arises when someone uses part of your property without permission, even after you tell them to stop.

The legal requirements to create a prescriptive easement are (a) open, (b) notorious, (c) hostile and (d) continuous use of part of another's property without permission for the required number of years in the state where the property is located.

To obtain a prescriptive easement, payment of property taxes is not required.

California only requires five years of open, notorious, hostile and continuous use. But Texas requires 30 years. Other states have varying time tests.

Prescriptive easements need not be exclusive. There can be shared use of the prescriptive easement with the property owner or other prescriptive easement claimants.

After the legal requirements are met, the way to perfect a permanent prescriptive easement is for the claimant to bring a quiet title lawsuit in court against the property owner. A local real estate attorney is obviously needed to help prove the required elements.

CONCLUSION: Easements burden virtually every property. Property owners usually benefit from an easement appurtenant over adjoining property. For this reason, property owners should understand the benefits and burdens of the three types of property easements. For full details, please consult a local real estate attorney.