There are a lot of legal considerations to take into account when purchasing property in Central Texas, including easements.
While easements may sound overwhelming, don’t be discouraged! It’s actually fairly straightforward, especially with the support of a seasoned real estate agent.
An easement is an agreement where a landowner grants a person or an organization legal permission to use part of their property for a specific purpose. The land on which an easement is granted is called the ‘servient estate,’ and the easement benefits go to a ‘dominant estate.’
As an example, say you are a landowner, and you grant a neighbor an easement to cross your land in order to reach their property (a situation also called an appurtenant easement). Your land would be the servient estate and the neighbor that you granted the right to cross your property would be the dominant estate.
Why Understanding Easements Is Important
- If you are purchasing a property, it’s important to know if an easement accompanies the sale. Your real estate agent (link to bios of agents here) can help you find out if a certain property has an easement on it, and if so, what kind of easement it is and where it is on the property. You can also contact the city to find out for sure, or look on the property deed, plat, or other homeowner documents. Some easements remain after you buy a property, and others don’t. Others sometimes have an expiration date.
- If you purchase a property with an easement, you’ll need to abide by its rules. Let’s say a utility company has an easement (also called a gross easement because its an entity or company with access to your land) to access power lines or underground pipes in your yard-legally, you have to grant them access. You have the right to use your property any way you want, so long as it doesn’t do anything that prevents the easement from being used in its intended way.
- Easements may affect the updates or renovations you can make to your property. If you plan on building a new home or an addition on your property, it’s important to know if your neighbor has received an affirmative or negative easement. An affirmative easement allows something to happen (like access to a home); a negative easement prevents an action, like blocking a neighbor’s view of a lake or their solar panels’ access to direct sunlight by planting a tall line of trees. Easements can cover rights to air space, the surface, or underground.
- Easements can be challenged in court, but there’s no guarantee of success. Easements are challengeable, but going to court isn’t easy to do in the middle of home buying and can be quite expensive. One option is to approach the neighbor that holds the easement to see if they might be open to terminating the agreement. For instance, if there is an easement that’s not in continuous use (like a shed built on your property line that hasn’t been used for years), they might be open to ending the easement arrangement because its become irrelevant with time. Extinguishing an easement by mutual consent of both parties can be the smoothest road to relieving yourself of its legal obligations.
- Check the wording of any easements you are agreeing to very carefully to understand its parameters. If a document grants an easement to a specific person, the restriction may end if that person passes away or sells the property. If it was granted to someone for a specific length of time, or to someone and their heirs to the property, then the easement could remain in effect no matter who owns the property. Knowing what you are getting into ahead of a sale is key.
- Check with a local attorney to make sure you follow the proper procedures for terminating an easement. Many times, easements can be terminated by filing a quit-claim deed, but state law determines how certain claims are handled, so checking with a professional is always the safest way to go (why struggle with legalese when the pros can do it?).
- If you initiate an easement, it’s critical to ensure you get it in writing. Having the details set forth in a legal document kept safely in the county deed records protects both your rights and the rights of the other person (the servient and dominant estate owners-remember them?). The costs for drafting and filing an easement are tiny compared to potential legal battles in court, so doing due diligence beforehand will save you a hassle in the long run.