A fence built on the wrong side of a property line can cause an easement.
An easement is the right to use the real estate of another for a specific purpose. When you seek to purchase real estate, it is important that you find out whether there are any easements on the property. A qualified real estate attorney can help you find out how best to determine if there might be any issues. Easement concerns commonly arise between neighbors who have adjoining properties or when the government has a right of way. In this post, I will briefly explain the various types of easements you may encounter.
In Gross
An easement in gross is a right that is personal to the individual to whom it is granted and does not necessarily pass to any other person if the person who owns the land that grants the easement in gross sells the land at some future time. As an example, you are granted a right to cross an individual’s land in order to put your boat in the water on a lake or a river. If you didn’t own any real estate in the immediate area or adjacent to that particular land, that would be an easement in gross and personal to you. If you stop using it, it would cease, and there would be no future easement.
Appurtenant
On the other hand, an appurtenant easement is an easement that pertains to a particular property, and as a particular property, it transfers as the ownership of the property is transferred. So if you own a piece of property and you obtain an easement to cross another person’s property as a result of your owning your own land, when you sell that land, the easement will pass to the future owners of your land.
Affirmative
An affirmative easement is the right to use that particular easement for the purposes contained in the easement, i.e., your right to cross a neighbor’s land to get to a public road or for any other purposes.
Negative
On the other hand, a negative easement is when you are prohibited from doing something to interfere with the right of a person who owns adjacent land, i.e., you are prohibited from doing something on your land which would interfere with the right of enjoyment of light, air, and a view of the neighboring land. There are restrictions in some York County developments which prohibit the planting of trees which will grow to a height that would interfere with the sunlight shining on solar panels on the house of an adjoining property.
Express
An express easement is actually created by either a direct recorded conveyance of the right to cross another person’s property or by a reservation which is typically in a deed by which the owner who is selling property reserves the right to cross the property they are selling to get to other land owned by them. In any of these cases only a title search will reveal whether such an easement is actually recorded on record in the Recorder of Deeds Office in order for it to affect the property you are purchasing either because you will have the right to cross the adjoining property or because the adjoining property will have the right to cross property you are purchasing.
Implied
An implied easement exists at a time that a larger parcel of land is divided into lots. The implication is that the owner of the larger tract would wish to reserve under themselves an access right across the smaller parcel or parcels that they have conveyed. That owner may also grant or convey a right to the owner of the smaller parcel across the larger one when the new lots are initially conveyed. This is particularly true if a development is created which has private roads on the development. Each lot owner is granted the right to use those private roads together with the other owners. This type of easement is not necessarily recorded but is still valid and enforceable.
Requirements for Creation of an Easement
In any circumstances, in order for such an easement to be created, it must result from a division of property that was all owned by one person or entity before the property was subdivided.
Necessity
An easement by necessity arises when an owner of a land-locked parcel must have an easement to go across another parcel to be ensured ingress or regress to their property. An easement by necessity must also meet certain requirements in that the land to which the easement is providing service or the land over which the easement is passing must both have been part of the same piece of land prior to the time that it was divided into separate parcels.
Prescription
An easement by prescription is what is known an easement by adverse possession. If a person crosses another person’s land openly, visibly, permanently, and continuously, uninterrupted, hostile and adversely for a period of 21 years, they will then have the right to continue to cross the neighboring land, and the owner of that land cannot stop them under normal circumstances.
Private Roads – A Common Problem
A matter which has caused many problems over the years are private roads that service a number of different properties and for which either no maintenance agreement exists or, if a maintenance agreement does exist, one or more of the adjoining lot owners who use the private road refuses to contribute toward the maintenance of that road. This creates untold misery for those who don’t want to be driving on tank proving grounds because of all the holes and ruts, but on the other hand, if they don’t maintain the road out of their own pocket, they will be seriously damaging their cars over a period of time or creating danger to the occupants of their cars because of the horrible condition of the road.
Termination
Easements can be terminated either by specific agreement of the parties or by real, absolute abandonment of the easement by the person who has the right to use the easement. Mere non-use of an easement does not constitute abandonment.
Important Terms
The person across whose land the easement passes is known as the servient tenement, and the person who has the right to cross the servient tenement’s land is known as the dominant tenement.
Hoffmeyer & Semmelman’s Experience
I, William Hoffmeyer, have lectured and written about easements for years to various groups of attorneys and title insurance agents in Pennsylvania as well as having represented many clients in either establishing easements (frequently called rights of way) or representing the servient tenement in an attempt to abolish an easement crossing their land.
Easements are Complex
Note that this article is extremely abbreviated concerning easements and should not be relied upon without first consulting legal counsel. If you have any questions concerning easements, please contact our York PA law office and either I or Attorney Buzzendore in our office will be more than happy to discuss your issues with you.