An easement is a type of property right that does not involve possession of a piece of property. The grant of an easement by a property owner to a grantee gives the grantee the right to use the subject property in some manner and/or the right to enter the owners’ property, even though the grantee does not have possession of that property. There are many different types of easements. For example, a utility company may have the right to run cables under a homeowner’s property. Another example is an easement that grants the right to cross another person’s property in order to access one’s own property. The right to use a neighbor’s driveway to get to one’s property is such an easement. These easements would be considered positive easements. An example of a negative easement is a historical preservation easement, which prohibits a property owner from using the property in a particular manner. For example, these types of easements may prohibit an owner from changing the façade of the owner’s building.
Either type of easement, negative or positive, is a type of restriction on the property and can affect the value of a person’s property. Once an owner grants (agrees to) an easement on the owner’s property, the owner is bound by that easement until it is terminated in some fashion.
An easement which is granted to a grantee in writing should be recorded in the same fashion as a Deed is recorded. Most property Deeds already have reference to some type of easement on the property. Because a property owner is placing a type of restriction on the owner’s property by granting an easement, the terms of the easement should be very clear.
Disputes about easements, what they mean, where they are located, and how they can be used, are the subjects of lawsuits. At that point, if the terms of the easement are not clear, the third party, usually a judge, gets to decide what the parties meant when the easement was granted and agreed to.
There are also easements that can arise without a written document, and a property owner must be aware that this is also a possibility. For example, if a neighbor enters a person’s property in order to take care of the property in some manner, then it might be presumed that the non-owner has an easement by “prescription.” There are also easements by “necessity” and by “implication.”
Why Consult An Attorney
Whenever a property owner does something or fails to do something that affects, and most probably restricts, the owner’s use of the property, it is very important that the owner understand the ramifications of such action or lack of action. Restrictions on a property can affect the value of the property and make it more difficult to sell. An attorney should always be consulted so that the property owner granting an easement understands exactly what they are doing by granting such easement.
An attorney can also negotiate with the grantee or grantor of easement and make sure that the language of the agreement is clear. An attorney is trained to spot problems that might occur in the future and plan for contingencies. An attorney can also guide an individual through the recording process with the proper Recorder of Deed’s office.
If a property owner finds out that another party believes they have an easement, which has not been memorialized in writing (by prescription, necessity or implication), an attorney is needed to help the property owner navigate the court system and attempt to resolve any disputes with regard to the property.
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