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Understanding Easements: How to Protect Your Property Rights

Understanding Easements: How to Protect Your Property Rights

Property easements are a common and important aspect of real estate ownership which are valuable to understand because of how they can impact a property’s use and value, and the rights and responsibilities of landowners.

An easement grants the right of use or access to a specific part of a property for someone who is not the owner. These rights are often granted to neighbours, utility companies or other government entities for various purposes. In this article, we’ll look in more detail at the different types of easements and how easements can protect a property owner, then outline important considerations before agreeing to an easement.

More on the definition of an easement

An easement is a legal right granted to a person or entity that allows them to use, access, or cross someone else’s property for a particular purpose. The lot, person or entity benefiting from the easement is referred to as the ‘dominant tenement’ or beneficiary while the property owner who grants the right is considered the ‘servient tenement’ that is ‘burdened’ by the easement. Easements are generally recorded in the property’s deed or title and are binding on all future owners of the property.

Different types of easements

There are several types of easements that serve various purposes. The most common types include:

Right of way: A right of way easement allows the beneficiary to use a path or driveway on someone else’s land to access their own property, which often occurs where the beneficiary’s property is landlocked or access is limited.

Easement of necessity: This type of easement is granted when a property owner needs access to a public road but lacks any other reasonable means of ingress and egress.

Easement by prescription: Also known as ‘prescriptive easements’, these are acquired through continuous, open, and unchallenged use of another person’s property for a specific period, which varies by jurisdiction.

Easement by express grant: An easement by express grant is voluntarily created and specifically granted by the property owner to another party through a written agreement or deed.

Easement by implication: This type of easement is created by law when it is implied that a property owner would have intended to grant an easement to another party based on the circumstances.

Easement by estoppel: Easements by estoppel occur when a property owner leads someone to believe that they have the right to use their property, and the person relies on this belief to their detriment.

Utility easements: These easements are granted to utility companies, such as power, water, or telecommunication providers, to access and maintain their infrastructure on a property.

Drainage easement: Allows the beneficiary to drain water from their property through another person’s land, common in areas of poor drainage or where the land is low-lying.

Conservation easement: This type of easement restricts the use of someone else’s land to protect its environmental, cultural, or historical values. Often employed by government departments, non-profit organisations and private landowners seeking to preserve natural habitats, heritage sites, or scenic areas.

How easements can protect a property owner

Easements can offer several obvious benefits to property owners, including:

  •  They can be mutually beneficial to neighbouring properties, granting them a legal right to access their land through the servient estate and proactively preventing disputes and road maintenance costs.
  •  In some cases, having an easement on a property can increase its value, especially if it grants access to desirable amenities or scenic views.
  • Easements can prevent neighbouring property owners from building structures or planting trees that encroach on each other’s land.
  • Utility easements ensure access to essential services, such as electricity, water, and sewage, without the need for each property to have separate utility lines.

Considerations before agreeing to an easement

Before granting or agreeing to an easement, property owners should carefully consider a range of factors, including:

Impact on property use: Determine how the easement will affect your property’s current and future use. Consider whether it will restrict your plans for expansion, development, or privacy.

Duration and scope: Understand the specific terms of the easement, including its duration, allowed activities, and any limitations imposed on both parties.

Professional advice: Consult with a legal professional with experience in property law, a conveyancer and/or a property surveyor to ensure you fully understand the legal implications and potential impacts of the proposed easement on your property.

Compensation: If the easement will significantly impact your property’s value or use, consider negotiating fair compensation with the party benefiting from the easement.

Right to modify or terminate: Determine whether the easement can be modified or terminated under certain conditions and what the process entails.

Existing easements: Investigate if there are any existing easements on your property that might affect future agreements.

Benefit from legal advice

As the points above illustrate, there is a lot to consider if your property involves an easement, either existing or proposed. Availing yourself of specialist advice from property lawyers such as our team at PD Law is highly advisable to help clarify the issues involved. While easements can provide shared access to utilities or amenities, they can also impose restrictions on your property’s use and development, so it’s essential to seek professional advice and fully understand the implications to protect your property rights and investments.

Easement FAQs

Q: How is an easement cancelled or removed?

A: By mutual agreement between the beneficiary and the servient owner, or if no agreement can be reached, potentially by a court to resolve the dispute.

Q: How long does an easement last?

A: Indefinitely provided the conditions and restrictions relating to the right are observed and absent of any legal challenge or termination.

Q. Are there formalities associated with easements?

A: Yes, an easement must be created for a specific purpose and be necessary or beneficial for the beneficiary’s land. The easement must also be created in writing and registered on the title of the servient land. The easement must not interfere with the normal use or enjoyment of the servient land by the servient owner or other parties.

Q: Do easements carry over from one owner of the property to the next?

A: Yes, easements usually carry over during property sale or transfer, providing the new owner with the same rights and obligations of the easement, as well as the conditions or restrictions that apply to it.

Q: Must an easement be disclosed in a contract of sale?

A: Yes, because of the fact an easement can affect the value and use of the property, and also places obligations and restrictions on the buyer. Both the seller and the buyer must disclose details of any easements that affect the property – including its type, purpose, restrictions and conditions – to avoid later legal disputes. Failure to disclose an easement can result in legal action, pecuniary penalties and potentially a void sale.

Q: What are the penalties if the conditions of an easement are breached or ignored?

A: Where the conditions or restrictions of the easement are breached, the aggrieved party may seek an injunction (stopping or ordering certain actions), damages or termination of the easement.