When purchasing real estate, identify any possible easements on the land before completing the purchase. What you assume might be a buildable section of the property might actually be some sort of easement, limiting your use of the land. Often the property owner does not receive compensation for an easement.
An easement is the right to use someone else’s land for a specific purpose. A common type of easement is a utility easement, which gives the utility company the right to access a certain portion of your land. Yet, there are other types of easements, such as the party wall easement, involving a wall located on the property line between two lots. There is not compensation for the easement per se, yet the property owners may each be responsible for certain expenses involving the wall. Other types of easements include easement by prescription, easement by condemnation and easement by necessity.
Creation of Easement
There are several ways to create an easement. It might be a written agreement between the property owner and the party using the easement, in which case there may or may not be compensation involved. Sometimes a person selling property will create an easement before conveying the property to a new owner. Therefore, he is in essence creating an easement on his own land and would not compensate himself for the easement. Another way to create an easement is by continual use of the land, which does not involve compensation.
Easement by Prescription
Easement by prescription is an easement created by continual use of a section of the land by someone other than the property owner. The use must be continual, open and hostile, meaning the owner of the property did not give the person permission to use the property. For example, a neighbor might be driving over a portion of his neighbor’s land on a regular basis. Laws applying to easement by prescription vary by state. However, typically this type of easement would not involve compensation to the property owner.
Easement by Condemnation
An easement obtained through the right of eminent domain for public purpose involves compensation to the property owner, if there is a loss of property value. This type of easement is called an easement by condemnation.
Easement by Necessity
If a property owner sells part of his land, yet the portion of land he sells is landlocked by his remaining portion, an easement by necessity gives the new owner access to the land he is purchasing. Court order creates an easement by necessity.