First, let’s define what an easement actually is. An easement is a legal agreement that allows one person, party, or entity the right to use another person, party, or entity’s property for a specific purpose. A common example is when a residential driveway must exist on a neighboring property. The “easement” allows the homeowner to cross over another piece of property to access their home.
When easements have been in existence for a long period of time, or when properties are bought and sold, it’s easy for the lines of ownership to get blurry and legal complications to arise. Below are a few common misconceptions surrounding easements.
Assuming an easement equates to ownership
An easement simply grants the right to use a portion of property for specific purposes, but does not transfer ownership.
Assuming an easement allows any usage
Easements are designed to allow specific types of usage, and are not open to interpretation. In the driveway example above, the easement exists to allow access to a property that is disconnected from the road. Any other usage (long-term parking of cars, building a fence, storing items, etc.) are not permitted and are within the property owner’s right to challenge.
Believing an easement is a permanent arrangement
Easements aren’t necessarily permanent arrangements. They can have expiration dates or be terminated under specified conditions.
Easements can be verbal agreements
In the same driveway example, if one neighbor verbally agrees to a driveway easement for property access, but doesn’t record it with the county, it will not automatically apply to future property owners. In Colorado, priority is given to the party that records an easement first, provided they had no prior notice of an unrecorded claim on the same property. A future property owner would have a strong defense against an unrecorded easement. To protect your rights, it is essential to have easements in writing and properly recorded with the county.
Ignoring maintenance responsibilities
Easements should outline who will be responsible for maintaining the area covered by the easement to prevent any disputes over neglect.
Not realizing the effect on property values
Easements can have positive or negative effects on property values, depending on the type of easement and its impact. Careful consideration should go into developing an easement and how it will affect neighboring properties.
Assuming easements are one-size-fits-all
There are many different types of easements, each designed to serve a specific purpose and each having their own legal implications. A few examples of easement types include:
- Affirmative easements: Typically provides the easement holder access to their property by way of the grantor’s property, or allowing drainage to flow from one property to or across another.
- Negative easements: In this case, the easement holder can prevent the grantor from utilizing their land, such as building a structure that would obstruct a view or a conservation easement that prevents or restricts development to protect habitats.
- Private easements: This arrangement is between a limited number of people, such as two residential property owners.
- Public easement: This type of easement benefits a community, such as a street, highway, or utility usage.
- Easement Appurtenant: This speaks to the number of parcels involved in an easement. Appurtenant applies to dominant and servient estates. The dominant estate benefits from the easement from the servient estate. In our driveway example, the neighbor using the driveway is dominant, gaining from the easement grantor, who is servient. Easement appurtenants are connected to the land and thus transferred upon its sale.
- Easement In-Gross: Easements in gross benefit a specific person or entity rather than a particular property. Unlike appurtenant easements, they are not tied to land ownership and do not automatically transfer with the sale of a property. Instead, the terms of the easement dictate whether and how it may be transferred. Common examples include utility easements and hunting easement.
Failing to acknowledge any physical limitations of an easement
An easement can be written to apply to specific property dimensions and/or impose restrictions on the usage of the property. If the easement holder doesn’t conform to the grantor’s specifications, legal disputes can arise, especially when building or property manipulation occurs.
Neglecting to seek professional advice
The descriptions of easement types above are just the most common scenarios, but easements can be complicated and nuanced, making them tricky to navigate when property changes hands or property disputes pop up. It’s important to seek professional advice to ensure that you fully understand the implications and limitations of easements, either on a property you are purchasing or selling, or if you are attempting to enter into a new easement agreement.
Hackstaff, Snow, Atkinson & Griess is here to help. Contact us today for a free consultation with one of our experienced attorneys.
