When you allow another person to use a part of your property without giving up ownership, this is called easement. If you create a written agreement about this between the two of you, it’s called the deed of easement. As the property owner, you can set whatever terms and conditions you want that tells how the other person can use your property. This is a good idea because writing down these conditions prevents trouble later on.
Easement in Gross
An easement in gross means that you allow others to use a portion of your property, and only that portion, according to your specifications. They can’t use other areas of your property, and they can’t pass the right to use your property to anyone else. For example, if you permit a friend to plant apple trees on the east side of your property, that is the extent of his privilege. He can’t decide he likes the west side better or that he prefers orange trees.
Appurtenant is a long word for rights that are attached to a property. So, with an appurtenant easement, if you give easement rights to another property owner and that person sells his property, the new property owner also buys the easement rights that are a part of the property. For example, you might give your neighbor permission to use a part of your land as a driveway. If she sells her property, the new owner also has the right to use the driveway. Make sure that your easement agreement states the exact purpose for the easement. This way, the neighbor can’t use the driveway easement as permission for anything else, like a farmer's market for tomatoes from her garden or a basketball court for her kids.
Affirmative and Negative Easement
If you’re feeling generous, you might offer an affirmative easement, which allows your neighbor to use your property as she sees fit. Conversely, a negative easement agreement has clauses that restrict her use – meaning she can only use your property as specifically stated in the agreement. For example, a negative easement agreement might specify that your neighbor can use your land but she can’t build structures on it that can obstruct your view of the street or block the sunshine and breeze that comes into your home.
Express Grant and Easement by Implication
If you enter into an express easement agreement, you allow the use of your land, but an easement by implication agreement occurs when you sell a part of your property but at the same time, retain the right to use it. For example, if you sell a part of your property to another person and a water supply pipe runs through the sold portion to your land, you have the right to continue using the water pipe even though it now runs through the new owner’s property.
Equity and Prescriptive Easement
Equity of fairness easement, or easement of necessity, is given to landlocked pieces of property that have no value without access. You might sell a part of your property that isn’t connected to a street or a road. In fairness, you’ll need to allow the new property owner to pass through your property to get to hers. Prescriptive easement is a similar fairness easement, and it allows regular use of your property without your permission, usually because your property was in use for a continuous period without complaints from you. Prescription easement details often aren’t included in the property deed, so find out about them before you buy a plot of land.
- David Sacks/Lifesize/Getty Images