Easements Explained: What They Mean for Land You Want to Buy

Almost every piece of land has at least one easement on it. Most are harmless. A power company's right to keep a line along the road costs you nothing and brings electricity to the property.

A few are deal-breakers: a pipeline through the only good building site, a neighbor's driveway across your front field, or, worst of all, no legal way to reach your own land. The difference is in the details, and the details are in the public record if you know where to look.

What an easement is

Cornell's Legal Information Institute defines it this way: "An easement is the grant of a nonpossessory property interest that provides the easement holder permission to use another person's land."

Nonpossessory is the important word. The easement holder does not own the strip and cannot sell it. They hold a right to use it for a stated purpose, and the landowner cannot interfere with that use.

Two terms come up constantly:

• The servient estate is the land that carries the burden.
• The dominant estate is the land that gets the benefit.

Most easements on rural land are appurtenant, meaning they connect two parcels. Your neighbor's right to drive across your land to reach theirs is the classic case. These easements belong to the land, not the person. In the Institute's words, easements "are transferrable and transfer along with the dominant tenement."

Others are in gross. They benefit a person or company instead of a neighboring parcel. A utility's right to run a line is the usual example.

Common easements on rural land

How easements are created

The way an easement came into being tells you how solid it is and whether it shows up in the records.

Express easements are written down, signed, and recorded with the county. This is the kind you want. The document states who can do what, and where.

Implied easements by necessity are created by courts. The Legal Information Institute describes one as "an easement that arises when a landowner conveys a landlocked parcel of land to another." The required elements are "(1) unity of ownership prior to separation, meaning both estates were once owned as a single unit or tract and (2) necessity for the easement at the time of severance." Most courts demand strict necessity, meaning the owner has no legal way to reach the land at all.

Prescriptive easements come from use. The Institute calls it "a type of adverse possession where someone acquires an easement," based on use "without permission in a way in which the owner should be aware of." The time required varies widely: "States set the time limits required for someone to achieve a prescriptive easement which can range from a few years to over twenty."

Implied and prescriptive easements are the dangerous ones for a buyer, because they do not appear in a title search. You find them by looking at the land.

The easement you need: legal access

If a parcel does not touch a public road, you need a recorded easement across whatever lies between. People call land without one landlocked, and it is a common reason land is cheap.

Before you buy a parcel that depends on an easement for access, check these points:

1. It is recorded. Get the document itself from the county recorder, not a description in a listing.
2. It benefits your parcel. The legal description in the easement should match the land you are buying.
3. It is wide enough. Some counties will not issue a building permit unless access meets a minimum width, and fire trucks, well rigs, and concrete trucks all need room. Ask the county what it requires.
4. It allows utilities. A right to drive across land does not automatically include a right to run power or water lines along the same route. The document should say so.
5. Maintenance is settled. Know who pays to grade and gravel it.

Title insurance helps here. The standard owner's policy from the American Land Title Association lists "no right of access to and from the Land" as a covered risk. It covers legal access, though, not whether the route is passable. See our guide to title insurance for vacant land.

Could a court grant you an easement by necessity if the parcel has no access? Possibly, if the land was once part of a larger tract that did reach a road. That means proving the history and paying for litigation against a neighbor who does not want you there. Get the access in writing before closing, or walk away.

Shared private roads

When several parcels share a private road, lenders care about who maintains it. For home loans, Fannie Mae requires "an adequate, legally enforceable agreement or covenant for maintenance of the street," recorded in the land records. The agreement must cover:

• "responsibility for payment of repairs, including each party's representative share"
• "default remedies in the event a party to the agreement or covenant fails to comply with their obligations"
• "the effective term of the agreement or covenant, which in most cases should be perpetual and binding on any future owners"

Fannie Mae makes an exception where state law already defines owners' responsibilities for a private street. This rule applies to mortgages on homes, not land loans. It matters to you anyway, because it affects whether you, or the person you sell to someday, can get an ordinary mortgage on a house built there.

Easements that burden the land

For an easement that runs across the parcel you want, four questions decide how much it matters.

Where is it? An easement along the road frontage or a back boundary is usually a non-issue. One through the middle of the parcel, or across the only high and dry ground, can ruin the site plan.

How wide is it? High-voltage transmission lines and pipelines can carry wide corridors. On a small parcel that may leave little usable land.

What can the holder do? Read the document for rights to clear trees, bring in equipment, add more lines later, or restrict what you plant and build nearby.

What can you not do? You generally cannot put a permanent structure in an easement, and the same often goes for a septic drainfield or a pond.

Watch for old utility easements that describe no specific strip and instead cover the whole parcel. If you find one, ask the utility whether it will sign a document limiting the easement to the area it actually uses.

How to find easements before you buy

The title commitment. When you open a sale with a title company, it issues a commitment that lists recorded matters affecting the land, including easements, as exceptions to coverage. Ask for a copy of every recorded document on that list and read each one.

The recorded plat. In a subdivision, the plat map draws utility and drainage easements on each lot.

The deeds. Older easements are sometimes written into a deed instead of recorded separately. Read back through the chain.

A survey. A surveyor can plot recorded easements on the map so you see exactly where they fall, and will note visible evidence of use, such as lines, poles, and paths. Tell the surveyor up front that you want easements shown.

Your own eyes. Walk the whole parcel and look for:

• Power lines, poles, transformers, and meter boxes
• Pipeline markers and cleared corridors
• Driveways or tracks leading to someone else's land
• Gates, culverts, and ditches that serve other parcels
• Worn footpaths to water, a hunting stand, or a shortcut

Anything in use that you cannot match to a recorded document is a question for the seller and, if it matters, a real estate attorney.

The conservation easement database. The National Conservation Easement Database publishes a free interactive map and search tool covering conservation easements across the country.

Conservation easements

The database defines a conservation easement as "a voluntary, legal agreement that permanently limits uses of the land in order to protect its conservation values," made "between a landowner and a land trust or government agency."

Land under a conservation easement often sells for less, and that is because the limits are permanent. Depending on the document, you may be barred from subdividing, from building more than one home, from building at all, or from clearing forest. None of that is negotiable after the fact. If a listing mentions a conservation easement, get the full recorded document and read it before anything else.

Can an easement be removed?

Sometimes. The Legal Information Institute notes that an easement can end "if it was created by necessity and the necessity ceases to exist, if the servient land is destroyed, or if it was abandoned."

The practical route is simpler. The holder signs a written release and you record it. Utilities will sometimes release or narrow an easement they no longer use. A neighbor may release an old access right if they now have a better route. If a release matters to your plans, make it a condition of the sale so the seller has a reason to help obtain it.

What should change your offer

• Walk away or renegotiate hard: no recorded legal access, an easement through the only building site, or a conservation easement that forbids what you plan to do.
• Negotiate: a shared road with no maintenance agreement, an access easement too narrow for a permit, or an easement covering the whole parcel that the utility has not yet limited.
• Usually fine: utility easements along the road or boundaries, drainage easements in low ground you would not build on anyway.

The bottom line

Order the title commitment early and read every document behind every exception. Have the easements drawn on a survey, and walk the land looking for use that nobody recorded. For any parcel that depends on someone else's land for access, get that right in writing and on record before you close.