When does someone else have a right to use your property even though you own it? It happens when that person or entity has rights to an easement over your property. You may own or acquire a piece of land subject to easements which give others certain limited rights to use a portion of the property for specific purposes.
Frequently encountered easements include:
Public utility easements – these are probably the most common types of easements; they provide public utilities (e.g., gas, electric, telephone, etc.) or any corporation operating pipeline facilities (e.g., gas, oil pipelines) with the right to run lines or pipes over, across or under your property and generally provide the right to enter upon your property to install, maintain, inspect, operate or repair the utility lines or pipelines.
Municipal easements- these are becoming increasingly common, and include grants for sewer, water, drainage, conservation purposes (protection of woodlands, greenways, wetlands, etc.) which are given to the local municipality or other governmental entity to provide benefits for the public good.
Easements for encroachments – these are less frequent, but may, for example, permit a neighboring structure or fence to encroach, or overlap, onto an adjoining property.
Driveway easements – often encountered when two adjoining properties share a common driveway located on the land of each adjoining property. Each owner grants the other an easement for ingress and egress over their part of the common driveway.
It is important to understand the ways in which use of your property may be restricted due to an easement. For example, if a sewer easement runs through your property, there may be restrictions against placing any structures over it. If repairs are ever required, the holder of the easement will have the right to access the line (usually by digging up your property!). If part of your property is subject to a conservation easement, you may not have the right to cut down trees or build structures in the easement area. And if you do build a structure without first obtaining any necessary approvals, you may have to later tear down the structure.
Easements are usually created by an express grant of the right to others, often in the form of a formal agreement between the parties to the easement, which is set forth in a recorded deed. An express grant of an easement can also be made by reserving an easement in a deed, or providing for it on a filed map or survey.
Easements can also be created by implication or necessity. If, for example, access to a piece of property is only obtainable over certain private roads, an easement may arise to provide access.
Finally, easements can be created by prescription, which is similar to adverse possession simply by extended use over a prolonged period of time. If one can prove exclusive, continuous, uninterrupted, visible and notorious use for a 20-year period, (for example, a farmer’s use of a dirt roadway to access a landlocked field) one may acquire an easement.
It is important to know what easements, if any, your property is subject to and to be aware of the effect they may have on your enjoyment of your property.