I Would Like To Know More About Easements?

I love to talk about easements for several different reasons. They are so important and critical to land ownership. I had an employee who worked for me and his sole responsibility was to procure easements (access) into our property. I was managing 85,000 acres of land and some of it had no access. As a landowner you must know that the type of access affects value. Typically property along a public paved road will have more value than property accessed by an easement. Easements can impact what you can do with the property and can determine the ‘highest and best use’ and therefore value. There are other type easements beside those that involve access or roads. Let’s look at different type easements.

1. Easement in gross-  In this type of easement, only property is involved, and the rights of other owners are not considered. For example, a public utility line easement would be an easement in gross and would be recorded in the public records. If for any reason the title insurer fails to disclose a properly recorded easement in gross, and which then causes a problem later, then the title insurer must either pay you the diminished value of your property, or have the easement moved.

2. Easement appurtenant-  An example of an easement appurtenant would be an easement allowing you to drive over your neighbor's property to in order to reach your property. The easements ‘runs with the land’. An easement by necessity can be created for a landlocked parcel that has no public road access. To create an easement appurtenant by necessity, the owner of the landlocked parcel must be able to prove in court that there was common ownership with one of the joining parcels that has public access.

3. Prescriptive Easement- A prescriptive easement arises if someone uses part of your property without your permission. A prescriptive easement involves only the loss of use of part of a property, for example a pathway or driveway. Payment of property taxes is not required, as it is to obtain title by adverse possession. Adverse possession of a prescriptive easement involves the loss of an entire property by open, notorious, hostile adverse and continuous use. The legal test to acquire a prescriptive easement of another owner is that the use must be (a) open, not secret, (b) notorious, clearly observable, (c) hostile, without the landowner's consent and (c) continuous, without interruption for the number of years required by state law. For example, the minimum hostile use varies from 5 years in California to 30 years in Texas. The most common prescriptive easement arises when a fence is erected several feet on the wrong side of a boundary line. If the hostile user meets all the requirements, after the required number of years, a permanent prescriptive easement results for the strip of land. Prescriptive easements can be shared, that is, the hostile use need not be exclusive. Use can be shared with the legal owner and/or other hostile prescriptive claimants.

To perfect a legal prescriptive easement, the hostile user must bring a quiet title lawsuit against the property owner and prove all the open, notorious, hostile and continuous use requirements.

For Information on Buying or Selling Land contact G. Kent Morris, ALC, RF at      (706) 457-0090