From affirmative easements to negative easements, you may consider various easements for your property. Each serves different purposes and has a different set of rights, responsibilities and laws pertaining to it. This guide explores what the three common types of easements are, additional easements and how to choose one that meets your needs and goals.
Types of Easements
While many variations of easements exist, you will come across three common types of easements:
- Utility easements: An agreement between a homeowner and a utility company to install and run utilities
- Private easements: An agreement that provides personal benefits between two private parties
- Necessity easements: An agreement enforced by local law to permit one party to use a section of another person’s property
Most of the types of easements fall under utility, private or necessity easements. Similarly, most types of easements can fall under two main categories — affirmative and negative easements. Let’s explore what negative and affirmative easements are, how they work and a few other related easement types:
1. Affirmative Easements
An affirmative easement gives easement holders the right to perform a particular action on one’s property. For example, a power company might need access to a section of the property owner’s land to install a power line. Other examples could include a property owner wanting to connect to a neighbor’s sewer system or a property owner needing to use another landowner’s driveway to cross over to their own property.
Most easements fall into the affirmative easement category, including appurtenant and prescriptive easements.
2. Negative Easements
A negative easement prohibits the landowner from taking specific actions on their own property. It’s the opposite of an affirmative easement in that sense.
For example, one property owner’s home (Property A) may be in front of and slightly below another property owner’s home (Property B) on a slope. Property B may enter into a negative easement with Property A to ensure Property A never builds above a certain height, as doing so would block Property B’s view.
This type of easement is a restrictive covenant, as it’s an agreement that helps maintain the property value of the associated homes. In the example, Property A helps maintain the property value of Property B by allowing them access to a view.
3. Appurtenant Easements
An appurtenant easement involves a dominant estate and a servient estate, which are “connected” through the easement. Here, the servient property is the one that allows the agreement, and the dominant property benefits from it. One example is a dominant property needing to access a servient property’s driveway to access their own property, which would fall under necessity easements.
It’s important to note that appurtenant easements can stay in effect regardless of whether either of the parties sells their property. However, certain rules apply. If new owners purchase the dominant estate and are unaware of the easement, it will still be in effect. If the new owner of the servient estate purchased the property without notification of the easement, the servient estate may get out of the easement.
4. Easements in Gross
An easement in gross is different from other straightforward easement agreements in that it involves providing partial land rights to another person without giving them legal ownership. This kind of easement is attached to the individuals involved, not the property, and becomes invalid when the legal owner no longer owns the property.
For example, a property owner might allow their friend unrestricted access to a pond on their property. This agreement is between each individual, so if the property owner sells their land and a new owner takes over, the easement in gross would not apply and the friend would no longer be able to access the pond under the easement in gross.
5. Prescriptive Easements
A prescriptive easement involves non-property owners continuously using the property for specific reasons — the defining time period and use cases may vary by state.
One common example is when children use a shortcut on private property to get to school over many years. The property owners realize it’s happening and don’t take steps to stop it, so it continues. If new owners purchase the property and want to block off the shortcut, the children may claim they have a right to use the shortcut based on why and how long they’ve used it through a prescriptive easement.
Easement Factors to Consider
While some easements provide access to important resources like utility services and public roads, others may allow for flexibility of land use for specific activities or enhanced property value with access to scenic views — all without having separate land ownership. Even with the various benefits available, the type of easement you choose will depend on your specific needs and your end goal. Some factors to consider include:
- Purpose of the easement: What’s your reason for an easement? Consider whether your specific use is for utility installation, landlocked property or to preserve certain views.
- Legalities: Get familiar with your state’s laws and regulations regarding easements to understand your rights and obligations. Additionally, you might consult with a real estate company for personalized advice on the best step forward in consideration of your particular situation and the laws that govern it.
- Property requirements: Determine the most suitable easement by considering physical aspects like the location, existing infrastructure and topography of the property.
- Long-term implications: Consider the impacts of the easement in the long term, such as property value, restrictions, maintenance responsibilities and future land development plans.
- Potential collaboration or negotiation: If you have options, speak with various utility companies and property owners to find someone with whom you can form a practical and mutually beneficial solution.
- Reviewing documentation: To minimize issues along the way, thoroughly review easement documents for a full understanding of your rights, limitations and responsibilities.
- Seeking professional advice: Work with easement acquisition companies that will take an active role in understanding your unique situation, gathering the necessary documentation, ensuring compliance with your area’s rules and communicating with the landowner and their designated professional.
Streamline Easement Acquisition With SelectROW
Whether you’re a property owner or you need to access a private property for a certain reason, you might benefit from working with a company that can help you attain a gross easement or another type of affirmative easement. SelectROW has spent over 25 years in the business, assisting clients with easement acquisition through thorough and specialized assistance from collaboration to completion.
Each project is unique. Using our expertise and a collaborative approach to acquisition and negotiation services is our key to successful and efficient easement acquisition. To receive help from a knowledgeable team with extensive expertise and a direct, hands-on approach, contact our experts at SelectROW today.