Do you know your property easements?
“Chance does nothing that has not been prepared beforehand.”
— Alexis de Tocqueville (1805-1859)
Does your property have any easements? Chances are, it does. An easement is the right of another person or entity, such as a public utility or government agency, to use part of your property. Most easements are beneficial, such as utility easements over or under your property to serve the property and neighbors. A few easements, however, can be detrimental. For example, if I walk over your property frequently or drive my car over your land without your permission, I could be creating a permanent, prescriptive easement to continue doing so in perpetuity. Some prescriptive easements can arise without the owner’s knowledge, such as a neighbor using part of some rural land, which the owner rarely visits, to grow crops.
There are three types of easements. Two types are fully disclosed at the time of property acquisition, usually on the deed and in the owner’s title insurance policy, but the third easement type can arise without consent.
Easements appurtenant benefit a neighbor’s property.
If your property is subject to an “easement appurtenant,” the neighbor benefits and your parcel is burdened. Most such easements were intentionally created when the property was subdivided. They are recorded at the city or county recorder of deeds office and are part of each property’s title. An example would be an easement appurtenant created for your neighbor to reach his or her parcel from the street by driving over part of your property. Your property is called the “servient tenement.” The neighbor’s property, which benefits, is the “dominant tenement.” Occasionally, easements appurtenant can be created to reach a landlocked parcel that has no access to a public road. Most states have laws allowing the creation of an “easement by necessity” over an adjoining parcel.
To create an easement appurtenant by necessity, the owner of the landlocked parcel must prove, in court, that at some time in the past both parcels were owned by the same private owner. Prior government ownership of both parcels doesn’t count. The legal theory of an easement appurtenant by necessity is the landlocked parcel was accidentally created, and the common owner forgot to include an easement over an adjoining parcel to reach a public road.
Easements in gross are usually for utilities.
If your property has overhead or underground utility lines that also serve your neighbors, you’re probably subject to an easement in gross. There is no dominant tenement, but your servient tenement is burdened by the public utility easement in gross. For example, a residential property has an easement in gross sewer line along the northern 5 feet, which benefits the residential property, as well as the neighbors’ homes. Many homes have electric, phone, water, sewer and cable-TV easements in gross along the back or side of the parcels. These easements in gross benefit the public utilities. Most easements in gross were created at the time the parcel was subdivided and are recorded against the title to each property. Easements in gross usually are along the edge of a property and do not interfere with full use of the property.
Occasionally, however, an easement in gross will interfere with full property enjoyment, such as sewer line under a backyard where the homeowner wants to construct a swimming pool. If the easement in gross was properly recorded, the property owner has no recourse and must tolerate it. However, if the homeowner’s title insurance policy did not disclose an underground easement in gross, then the title insurer is liable for either (a) the diminished value of the property with the undisclosed easement in gross or (b) the cost of relocating the easement in gross.
Prescriptive easements can be troublesome.
A prescriptive easement arises without the propertyowner’s consent when someone, usually a neighbor, uses part of the property without the owner’s approval. A prescriptive easement is created by open, notorious (obvious), hostile (without consent), and continuous use for the number of years required by state law. The time period ranges from just five years in California to 30 in Texas. Needless to say, there aren’t many prescriptive easements in Texas.
However, a prescriptive easement need not be exclusive; it can be shared with the property owner. To illustrate, suppose I drive over your driveway for the required number of years to reach the garage at the rear of my property. You tell me not to do so, but I continue. If you don’t stop me, such as by erecting a fence, and if I continue using part of your land for the required number of years, I can acquire a permanent, prescriptive easement.
Most prescriptive easements arise on rural land when one landowner doesn’t know an adjoining owner is using part of his or her land. Fences constructed on the wrong side of a true property boundary can also lead to prescriptive easement strips.
Prescriptive easements, after the required number of years of open, notorious, hostile an continuous use, can be perfected in a quiet-title lawsuit against the property owner.
The best way to prevent prescriptive easements from arising is to periodically inspect property boundaries to be certain a neighbor is not using part of the property without permission. If the nonpermissive use is temporarily or permanently stopped, that ends the continuous use. Or, if permission is granted, that will usually defeat a claim to a prescriptive easement because the hostility element is then lacking.
Most properties are subject to easements appurtenant and/or easements in gross. However, to prevent a prescriptive easement from arising, at least annual inspection of property boundaries is recommended. Please consult a local real estate attorney for further details.