EASEMENTS: Does Your Land Really Belong To You?

By Stephanie Monroe Wilson

Most purchasers of residential or commercial land believe that within certain limits, they can use the land for whatever purpose they desire. One restriction purchasers may not consider when buying a property are easements. Land is often subject to easements of various kinds which can substantially limit a property owners’ use of their land. This article addresses easements that property owners may not think about.

I. GENERAL PRINCIPLES OF EASEMENT LAW.

An easement grants a person or entity the right to use the land of another for a specific purpose. Generally, the rights of any person having an easement are measured and defined by the purpose and character of the easement. The right to possess, use and enjoy land upon which an easement is claimed remains in the owner of the property except when it is inconsistent with the purpose and character of the easement. The universal rule is that the land subject to the easement will not be burdened to a greater extent than is contemplated or intended at the time the easement is created.

Where an easement is unambiguous and clearly limits the use of the property across which the easement travels, the language of the easement determines the extent the property owner can use the subject property. Easements, however, are often ambiguous. In those situations, case law provides insight into uses that would be permitted and those which would be prohibited.

II. EASEMENTS THAT MAY IMPACT YOUR PROPERTY.

Utility Easements:

Utility companies will normally have written and recorded easements and the property owner is wise to review those easements to see where it is located on their property and what they are prohibited from doing. If a purchaser uses a title company to purchase a property, those easements will be provided as part of the record of title.  Subsequent to purchasing a property, the owner may encounter a utility company that seeks to prevent construction of improvements on or near the utility easement. The question then becomes to what extent can the property subject to a utility easement be used by the property owner.

The general rule throughout the United States is that where there is a utility easement, either for underground utility pipes or wires, or above ground electrical wires, constructing a building or other permanent structure across the land subject to the easement will materially interfere with the easement holder’s free right to use the easement as contemplated by the parties, and therefore is not permitted. Although structures on an easement are often held to be in violation of the utility easement, there is no such general rule regarding parking lots, driveways or roads.

Prescriptive Easements:

A prescriptive easement grants a person the right, which a property owner cannot prevent, to cross your land in the way they have been doing the last ten years. If a party does establish a prescriptive easement it cannot be greater than the party’s use that established it. Therefore, if a party drives his/her station wagon across a specific portion of your property for 10 years he/she may have an easement by prescription that grants him/her the right to drive his/her personal vehicle along the same route across your property. You cannot block the party from driving across your property, but the party cannot expand the easement and use the easement for commercial purposes, for example, or claim any ownership interest in any portion of your property.

The only way a party can acquire an easement by prescription across your land is by 10 years of continuous use. During that time, the party’s use of the land must be continuous, open and notorious and hostile.

For continuity, a party’s use of your property must be continuous for 10 years. If a party only entered your property occasionally or only used the property for 3 years, then did not use it for the next 4 years and then went back and used it for 7 years, he or she does not have a claim for a prescriptive easement. This continuity, however, can be established by tacking, which is the adding together of a prior party’s use.

Establishing open and continuous use of your to obtain a prescriptive easement means a party’s use of your property must be seen. The party must establish that his or her use was appropriate to the type, size, and use of the easement he or she is trying to obtain. Case in point, if a party wants an easement by prescription to drive heavy machinery across your property, then he or she needs to drive heavy machinery across your property. Walking across your property for 10 consecutive years may give a party the right to an easement for a walking path across your property, but it certainly does not give a party the right to drive heavy machinery across your property.

To establish hostility a party must prove that you did not give them permission to use your land. If a party comes to you and requests you to allow him or her to drive across a portion of your property for 2 years, those 2 years do not get added into the 10 years necessary to establish an easement by prescription.

One critical point to note concerning prescriptive easements is that to maintain a claim for an easement by prescription, a party does not have to prove that his/her use of your property was exclusive.  In other words, if your neighbor continually drives up your driveway to access his/her property as well as you, he/she could establish an easement by prescription along your driveway.  This means, that if you ever decide to move your driveway to a new location and block your current driveway, if a prescriptive easement has been established, you cannot do so because your neighbor has a right to use it.

III. CONCLUSION.

Property owners often believe they can do whatever they want with their property, but that might not be the case. Easements are prevalent and as a property owner you should take steps to see if there are any recorded easements against your property and pay attention to who is coming onto your property as they might establish a prescriptive easement. This diligence is important to be done before buying a property so a purchaser knows ahead of time what restrictions there are on the use of the property.