Quick definition: What is an easement?
An easement gives another person or entity the legal right to use a designated part of your land for a specific purpose. It gives the other party a right of access to that area, but you still own it as the homeowner.[1]
Spotting the word “easement” while reviewing a seller disclosure or title report might feel alarming, if you’re unclear about what it is. Without understanding what an easement is, it’s hard to know if you’ve come across a red flag and how it might impact you as a buyer.
An easement grants another party a limited legal right to use a section of the land that belongs to you for a predetermined reason. Legally, the property that benefits from the easement is the “dominant tenement” and the party that’s affected by the agreement is the “servient tenement”.[2]
Let’s say you have power lines running across your backyard. To adequately maintain them, your local utility company has a legal right to access the part of your yard that’s directly below, above or around the electrical system. Similarly, an easement might also be enacted for a driveway that you share with your neighbor.
In this guide, you’ll learn more about what an easement is, the different types, how to know if a home comes with an easement, and how to handle it.
How easements are created
Most easements exist long before you even tour a home. They're often created through a property deed or other legal process. Typically, the scope of the easement is clarified, like who benefits from gaining land access, who must legally provide that access, which part of the property is usable, and for what purpose.[2]
These are a few ways an easement might be made and how it can come up in a real-life scenario:
- Express easement. The seller of your home and the area’s utility company explicitly signed and recorded an easement agreement years ago that’s now in the home’s deed.
- Implied easement. You purchased a property that, decades ago, was once part of a larger property. No access path to the divided lots was ever written, but a long-standing easement was implied that lets you get to your subdivided property.
- Easement by necessity. Your dream getaway cabin has no road access and is landlocked. The only way to reasonably access the cabin is by an easement through a neighbor's land — in other words, it’s necessary.
Easements often transfer with the property during a home sale, and can only be terminated for limited reasons — like if the land is abandoned or both parties agree to sever the agreement.
Discovering an easement in the eleventh hour of closing on a new home might not be your ideal scenario. To avoid surprises, keep an eye out for this legal condition so you can decide if you’re comfortable with moving forward.
Types of easements you're most likely to encounter
Utility easements
Utility easements extremely common along the edges of a property, like along your back fence line. Using an easement lets utility companies use a defined section of your land at any time to work on utility infrastructures, like electricity, water, telecommunications, and gas.
They don’t need to request your permission to access the easement, even if it’s located deep in your property. They also can remove anything that obstructs the utility system or creates a safety hazard, like a permanent gazebo that’s blocking access to an in-ground pipeline.[3]
Right-of-way easements
This one strictly gets the other person from point A to point B. A right-of-way easement lets them cross straight through your property to reach theirs.[4]
Whether the easement is a linear footpath, driveway, or road, you can’t build permanent structures or block the easement with plants or fences. One of the biggest downsides of right-of-way easements is how it affects your privacy. It might be hard to relax on your porch when a delivery driver is traipsing through your lawn to drop off your neighbor’s packages.
These easements can also raise liability concerns. If you don’t adequately maintain it and an injury occurs on the easement, you might be on the hook.
Drainage easements
Storm drainage easements are permanent drainage systems that might run along or through your property. Like utility easements, storm drain operators have the right to access the easement to conduct maintenance or repairs on the drainage system.[5]
To ensure drainage remains stable in the area and operators have easy access to their work, you’re required to maintain the easement. This involves keeping it clear of yard clippings and waste that might block drains. It also restricts you from installing some types of fences, decks or permanent additions that encroach on the easement.
Conservation easements
A conservation easement is voluntary and often used to permanently protect the land and preserve it for an intended purpose. It’s often used in rural or agricultural settings as a path to conserving wildlife habitats, hunting grounds, or livestock grazing.[6]
With this type of easement, the land doesn't have to be publicly accessible. It also might offer landowners estate tax benefits.
The IRS has scrutinized conservation easement transactions in recent years. It’s important that you do your due diligence by consulting a tax professional about its restrictions.[6]
HOA-related easements
If you purchase a property with a Homeowner’s Association (HOA), you might encounter HOA-related easements. This might include shared driveways, community walkways, and other areas supporting utility infrastructure.[7]
You can find any HOA easements in your community’s covenants, conditions, and restrictions (CC&Rs) or other HOA agreements.
How to find out if a property has an easement
If you’re actively searching for your next home, there are a few steps to learn about potential easements:
- Review the seller's disclosure. In most states, sellers are legally required to divulge known property history, including easements. However, if the easement is implicit in nature, it might not surface on this document.[8]
- Read the title report. The title report that’s provided by the title company during the closing process is where easements surface during the homebuying experience. Specially, Schedule B lists what’s not covered by title insurance, like easements, so you can flag potential concerns before finalizing the deal.[9]
- Order a survey. A property survey, like an ALTA land survey, physically marks the easement on the land. This turns a vague disclosure like "utility easement in rear yard" into a real-world visual boundary. Now you can realistically see if that future swimming pool can work in the space.[10]
- Search the county recorder's office. Any express easements are a matter of public record and filed with the county recorder. Many county recorder websites offer a simple tool to help you find property records, like maps, deeds and easements online.[11]
- Ask your agent. Your agent is your trusted liaison between you and the seller’s agent. They can research whether any easements, encumbrances, or recorded agreements exist for the property as another expert set of eyes.
“Not every easement is a major problem” said Steven Wallace, founder of Wallace Law and a Board Certified Real Estate Attorney. “... Bigger red flags include broad access easements, shared driveway easements with unclear maintenance terms, and easements that affect buildable areas or create uncertainty about who can enter the property.”
What an easement means for you as a buyer
As a buyer, consider how big of an inconvenience an easement might become. Here are three ways it might shape your experience as a future homeowner:
- Low-impact easements. These are the utility poles in the backyard, or a shared driveway that's been maintained and used with consideration by both parties. These are usually not dealbreakers, but it’s good to keep restrictions in mind.
- Moderate-impact easements. This includes easements for drainage or conservation which restrict changes to the land or surrounding space. Get clarification about easement restrictions before moving forward, and based on your situation, negotiate concessions with either the easement terms or the home price before closing.
- High-impact easements. A right-of-way easement that starts at your front yard’s fence, down the side of your home structure, and through your backyard is not only significant, it intrudes on your privacy. If the easement affects a large portion of the property or is located in an area that conflicts with your intended use, the stakes are much higher.
How to handle an easement during the home purchase process
- Don't panic. Most easements aren’t intrusive to your day-to-day enjoyment of your property. In fact, many have been active for decades without impacting past homeowners.
- Understand the easement's scope. Get the original recorded document which you can typically request through your county recorder’s office. This clearly outlines the specific area where the easement is and what you can and can’t do with this space.
- Consult a real estate attorney. The cost of a one-hour attorney consultation varies by location. For example, in California, you expect to pay around $150–$500 for this guidance.[12] It’s a small cost for peace of mind before locking yourself into a 15- or 30-year mortgage commitment.
- Verify if it’s covered by title insurance. Usually, easements aren’t covered by standard title insurance which protects you from financial loss due to preexisting property defects and issues. Ask your title company whether easements are included in your coverage; if not, see if an enhanced title policy is possible for greater protection.[13]
- Negotiate if warranted. Easements that significantly hinder how you want to use the property can be more than inconvenient, it might also affect the home’s resale value if you sell later. These downsides might be meaningful enough to negotiate a lower price.
“We’ll just talk to the neighbor about moving the easement,” or “we’ll get that taken care of once we own the place.”
According to David Washburn is Co-Owner of Heberer Homes, a Nationwide real estate company, these are common phrases that buyers assume are possible after closing on a property.
“... Removal or modification of an easement can require the consent of the easement holder, and in some instances, a court order, often at the buyer’s expense,” said Washburn. “It is essential to handle easement issues during the transaction, while leverage is still intact… Once a transaction closes, the buyer has no more power to address easement issues.”
How easements end
The legal justifications to end an easement are limited but it can be done handful of ways:
- A signed agreement between parties. The easement holder releases you from the easement terms.[14]
- An easement is abandoned. The benefiting party demonstrates that they’ve abandoned their right to the easement, like not using it for 10 years.
- An ownership merger occurred. One party now owns both the benefiting estate and the burdened estate.
- The easement is no longer needed. For example, if the other person now has access to a new public road to get to their property.[1]
Easements are enforced until they’re terminated in writing with the easement holder’s express agreement. Remember, they’re under no obligation to relinquish their easement rights.
If you have your sights on a home with an easement in the title report, consider if you’re comfortable with the long-term restrictions that come with it.