An easement essentially allows one party to use land that does not belong to them. Commercially speaking, this could mean a property owner allows another party to use their property for specific purposes. For example, a roadway could be used by an easement holder to access their property, for delivery purposes, or other reasons.
When buying a home or a commercial property, make sure to find out if any easements are in effect. Implied easements are not documented while express easements are. Express easements are important if the easement is part of a real estate transaction or as part of an inheritance of property.
Four Types of Easements
The servient landowner provides the easement while the dominant landowner is the one benefitting from the easement. There are different types of easements, each addressing specific situations. Easements usually have time limits that should be documented to prevent future issues between the two parties.
Easement by necessity is usually created by court order because there is no other way for the dominant landowner to access their property. In most cases, the courts will determine fair compensation for the servient landowner. So why buy a landlocked parcel without access? This type of land is usually less expensive so real estate investors may buy in an effort to increase the value by gaining an easement.
There are instances where private property has been used in an “actual, open, and notorious” way over a certain period of time. If no agreement is in place, an easement by prescription or prescriptive easement may be granted. The period of time of this adverse possession usually runs between 10 and 21 years. In Washington and Oregon, the length of time is 10 years.
In some cases, easements are granted for the greater good of the public. This is known as an easement by condemnation and is obtained by the government to “condemn” a piece of land. They may do this to obtain land to widen an existing roadway. The servient landowner will be compensated for the loss of land.
All of the above usually require a trip to the courthouse. A party easement is when the servient tenement and dominant tenement come to an agreement on their own. This could be a shared driveway, fence line, wall, and so on.
Other easements may be used for infrastructure purposes, such as drainage ditches, electrical lines, water, and other uses. A utility company will often use utility easements to install this infrastructure. While easements address specific situations, easements themselves can differ, too.
An easement appurtenant transfers with the land while a personal easement in gross is granted to an individual for a specific purpose. The latter ends when the agreement between the two parties is terminated for whatever reason. A negative easement means the dominant tenement is not allowed to build or otherwise change the property in any way.
A private easement is limited to those who directly benefit from the agreement. This could include a neighbor that is able to use a well that is located on the servient property. In some cases, these easements could be sold, limiting the uses of a future buyer.
Work with the easement experts
The Horenstein Law Group has decades of experience in commercial real estate law, including when, where, why, and how easements are being used. They could cause huge implications for you and the property you’re buying. We can also secure needed easements once you’ve acquired the property.
Before buying any commercial property, or land you intend to use for commercial purposes, get in touch with Horenstein Law Group. In addition to easements or legal right of way, we also draw up contracts, review titles, and investigate other legal documents connected with the property.