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Purchasing a property gives you rights to that property, but your rights may be limited if there is an easement in place. In basic terms, an easement gives a third party some rights to privately owned property. Easements are common in real estate, and an easement appurtenant is one type of them, just with a more complicated name.
Easement appurtenant definition
Easements are legal rights that allow individuals, companies or government entities to access or use property they don’t own, typically in a very specific way. An easement can be put in place for several practical reasons — one common reason is to give utility companies access to maintain power, gas, sewer or water lines.
Some easements are legal agreements between the owner and an outside party. What makes an easement appurtenant unique is that it is tied to the property itself, not just to the owner. An easement appurtenant is typically part of the property deed and stays with the property regardless of who owns it; it is not a short-term agreement that is dissolved once the property changes hands. If you are buying a property with an easement appurtenant, that easement will still be in place once you own it.
Let’s say the Jones family owns a 10-acre property and decides to sell five acres of it to Jane Smith, a real estate developer. Smith wants to build houses on it, but the only way for those houses to access the main road would be by going through the portion of property the Jones family still owns. Both parties agree to an easement appurtenant, allowing Smith to build an access road through the Jones family’s land. This would grant permanent access to the road regardless of who buys the houses and how many times they are sold over the years.
How is an easement appurtenant created?
Easements appurtenant can be created in several ways:
- Express: Express easements are created through a court order or a written agreement between two property owners. In our example above, the Jones family would grant the developer an easement appurtenant as part of the real estate purchase contract, and the developer would then file the change with their county records office so that the deed reflects the change.
- Implied: When land is subdivided and the only way for a lot to access a road or utility is through another lot, as in the example above, an implied easement may be created to give implied right of access.
- Necessity: Similarly, easements of necessity might be used when a property is subdivided in such a way that one or more lots become landlocked.
- Prescriptive: A prescriptive easement can address a longstanding issue. For example, if a ranch owner has been driving across someone else’s land for 20 years to access their cattle, they might be granted a prescriptive easement appurtenant for permanent access. Laws for prescriptive easements vary by state.
Other common types of easements
Not all easements are appurtenant, or tied to the land. Some end on a preset expiration date, some end when a property owner dies, some can be ended by formal agreement or court order. In residential real estate, the most commonly seen easements are related to utilities, public use or private agreements between neighbors:
- Utility: These types of easements give utility companies the right to install, maintain, repair and upgrade utility components on your property, such as water lines, electrical boxes and telephone poles.
- Public: These are created to give members of the public the right to use portions of your property in a particular way, such as following a walking trail or accessing a public beach.
- Private: A private easement may be put in place between two property owners for almost anything, like giving your neighbors the right to use your driveway or allowing them to fish in a pond on your property.
An easement appurtenant is a type of easement that stays with the property regardless of who owns it. If you’re considering buying a property that has an easement, be sure to do your due diligence to determine whether it is appurtenant — if it is, it will remain in place once you become the owner, and you will be required to abide by it.