Consider this hypothetical scenario:
You have purchased a nice parcel of woodland. It would make the perfect location to build your dream home, but there is no way to connect that home’s driveway to the main road unless you pave a tract through your new neighbor’s land. Unsurprisingly, your new neighbor is not enthusiastic about selling you a long, narrow strip of land that would effectively divide their property in two.
Fortunately, there is a legal way for your new neighbor to retain ownership of their land and still permit you to create a road on it: an easement.
According to Cornell Law School, an easement is “the grant of a nonpossessory property interest that provides the easement holder permission to use another person’s land.” In simpler terms, an easement gives a person or entity the right to (A) access another person or entity’s property, and (B) use it for a limited, specific purpose.
Affirmative vs. Negative Easements
In our hypothetical, the agreement between you and your new neighbor constitutes an affirmative easement. You have the right to access their property for a single, defined purpose: creating and using a road. Affirmative easements are commonly granted to electric companies, which must legally suspend and bury countless miles of cables across the large areas they service. Purchasing thousands of thin ribbons of land would be impractical (and create a bureaucratic nightmare), thus making easements the ideal solution for their needs.
Not all easements work the same way. For example, in exchange for granting you legal use of their land, your new neighbor may request that you build your dream home in such a way that does not block their view of a nearby pond. That would constitute a negative easement – one which doesn’t define what one party can do, but rather what they cannot.
The Six Types of Easements
Several types of easements are used in residential and commercial real estate. Let’s summarize the six you are most likely to encounter while you are purchasing property.
- Utility easements give utility companies rights to install equipment on private land which they do not own. Utility easements also give those companies’ employees legal permission to access and maintain equipment. Note that one utility easement may qualify as both affirmative and negative: In addition to preserving the utility company’s right of access, it may also prohibit the property owner from interfering with the utility company’s property (i.e. planting a tree that could grow until it touches powerlines).
- Private easements are created between two property owners. A private easement grants specific land use rights only to a specified person, group or agency – not the general public. Private easements typically only apply to the parties involved with their creation, and do not carry over to future owners of the same property.
- Easements by prescription may result from acts of adverse possession. If someone uses property they do not own in a hostile, open and notorious manner – and the owner of said property makes no reasonable attempt to stop them within a certain number of years – then the trespasser may actually receive legal rights to continue using that land. The moral of prescriptive easements is quite obvious: Do not let people use your land without your permission.
- Easements by necessity are created when private ownership of one parcel of land would make another parcel effectively worthless. Also known as access easements, they essentially allow the owner of one parcel of land to traverse another owner’s land when no other method for accessing their own land is practical. The government may also assign easements by necessity to the general public, as the Minnesota Department of Natural Resources does with trout stream easements.
- Easements by appurtenant can function in the same fashion as private easements or easements by necessity. What distinguishes an easement by appurtenant it its permanence: It remains attached to a property regardless of whether that property changes ownership, and as such can significantly impact how a new owner is able to utilize their property.
- Easements in gross do not define dominant and servient estates – and unlike easements by appurtenant, they do not necessarily remain attached to a property after it has been sold. An easement in gross sells another party the right to use land without giving them any legal ownership over it.
Should You Avoid Buying a Property That Has an Easement?
Owning a property that has easements may sound like more trouble than it’s worth. However, most easements don’t create very much inconvenience or significantly impact a property’s market value. Utility easements are often the cost of owning a property that is reliably supplied with electricity, gas and water. Many other easements simply give neighbors a way to enjoy the same beach, kids a way to walk safely to school, and other liberties that are invaluable to a cohesive community.
That said, there are easements which could make it impossible to make use of a property as you would like to. Read this message loud and clear: Never purchase a property without performing an exhaustive title search. You don’t want to learn about an easement or lien before it affects your rights as a property owner!
If you want to create an easement in the state of Minnesota, then you will need a professional land surveyor. Contact Compass Consultants of Perham, MN today if you would like the job done with speed, accuracy and peerless attention to detail!