We’ve had a lot of discussion over on our post about surveys, “What If Your Property Survey is Incorrect?,” so we thought we’d take a moment to discuss easements since they are a common issue that crop up on surveys. The word easement often pops up during the title search on the property you’re buying and can cover a wide array of items. There are two main types of easements and things can get a little technical when talking about them, so we’ll try and keep it simple. As with anything of this nature, if you do discover easements on your property and have questions about them, it’s best to turn to the source materials and people involved – your survey, your agent, the title company, and the owner of the property. Often it is hard to interpret much without all the facts, so you may need to discuss with each party before getting a true picture of what is happening and how it affects you and your home purchase (or sale).
Simply put, an easement is an allowance for someone else to use a portion of your property. If an easement exists, you still own the land, but someone else can use it for the purposes designated by the easement.
Two Common Types of Easements
In our line of work, we often see two types of easements on a regular basis, so we’ll use those to demonstrate. The first is a utility easement and the second is an access easement.
If you own a home in the suburbs, your home more than likely has a utility easement attached to it. These easements allow the utility companies (water, sewer, gas, electric, telephone, and cable) access to your land in order to provide these services to you and the community at large. This strip of land, typically across the back and along the sides of the property, is where the utility companies bury their cables, wiring, and pipes through neighborhoods to connect everyone to their particular service. Many of these easements are laid out in the neighborhood when they are first platted and designed by the developers, so you will often find them in the covenants, conditions, and restrictions documents (also know as CCRs and usually part of the HOA docs you receive when you buy a home) filed for that neighborhood. Some of these can be viewed online depending on your local county’s set up (you can find Bexar County information through the County Clerk’s website). Your property survey will also demarcate these lines if they were created in the original subdivision plats.
The second common easement is a right of access easement. Imagine you buy a large piece of acreage that is surrounded on all sides by other large tracts of land. How do you get to your land without crossing through someone else’s land? This is where easements come in. Since you have the right to access your land, you can be granted an easement across someone else’s property. These easements have a lot of legal implications with them and are a bit more complex. If you’re interested in reading up on these, we suggest The Real Estate Center at Texas A&M University’s in depth look at “Easements in Texas” (PDF).
Is the Easement Tied to the Land?
Easements can be tied to the land (utility easements like the ones we mentioned above often are), but they can also be tied to a person or business entity. If attached to the land, they are known as appurtenant. As easement that is tied to an individual or business entity is known as in gross. This type of easement terminates upon the death of the individual or end of the business entity. Most of the common easements we see in our area are appurtenant and therefore transfer with the sale of the property.
The biggest mistake we see homeowners make when it comes to easements is when they obstruct them in some way. Placing permanent structures like detached garages, sheds, or pools on top of these easements can cause a lot of trouble down the line. We’ve seen quite a few of these cases and when the owner goes to sell and these items are discovered, they open up a new can of worms where the owners have to seek a variance in order to allow the structure to be left in place. If the owner fails to be granted the variance, the structure has to go. If you know you have easements, avoid building anything on them. It is also advisable to not plant any large trees or shrubs in these areas as if and when someone needs to use their easement, they do have the ability to remove those items. Imagine the electric company coming through your back yard with a backhoe to dig up their easement and lay some new cables – would you want them digging up that tree you planted when you kids were born? A little forethought goes a long way when designing your landscaping and building any permanent structures on your land.
image courtesy of dno1967b