Phillips & Angley

It's your land, isn't it? The answer could be yes and no

You want to purchase a piece of property. As you review the deed and legal description of the property, you discover that someone else has the right to use a portion of it. Easements are fairly common, but that does not mean that you shouldn't review them to determine how they will affect your use of the property.

An easement allows another party to use part of your land for some purpose. You retain ownership of the property. In some cases, you might continue to use the property, but in others, you may not.

Easement types

The relationship between the parties, the type of property and the use of the property dictate the type of easement. Some of the most common easements include the following:

  • Private easement
  • Necessity easement
  • Utility easement
  • Public easement
  • Prescriptive easement

Establishing an easement could occur through prior use. If a party used the property, but the owner of the land neglected to include that use in the deed, it could create an "easement by prior use," which requires the following circumstances:

  • Common ownership of the properties
  • A separation of the property (severance)
  • Active easement before and after severance
  • Notice of easement
  • Necessary and beneficial use of the easement

It could take some research and investigation to determine whether this type of easement exists on the property you wish to purchase.

Other easements

Other easements may be in place despite the fact that no official documentation exists:

  • Storm drain easement
  • Aviation easement
  • Beach access easement
  • Sidewalk easement
  • Conservation easement
  • Dead end easement

Many easements do not include a time limit. If they do, however, the party granted the easement must stop using the land upon expiration. If you and the other party are amenable, you could negotiate a new easement. You cannot interfere with the easement owner's use of the land. You will have to petition the court to terminate an easement, and you must prove at least one of the following circumstances exists:

  • Death of the easement owner
  • Hostile use of the property by easement owner
  • Agreement to terminate the easement
  • Expiration of the easement
  • Easement owner stops using the property
  • Easement owner no longer needs it

When reviewing existing easements on property you wish to purchase, keep these events in mind since some easements could be terminated after the sale.

Real estate transactions and easements

When buying a property that includes one or more easements, you must determine which ones you have the right to terminate and which ones you cannot. Appurtenant easements (think utility easements) benefit the land and remain with the property. On the other hand, "easements in gross" involve rights granted to others by the previous owner that only benefit the user of the land. You may decide whether to maintain such easements when you purchase the property.

In order to ensure that you don't run afoul of a legally established easement, you would more than likely benefit from involving an attorney well before you sign the papers to purchase the property. Discussing the matter with a Massachusetts real estate attorney could also help you determine whether the easements will interfere with your intended use of the property.

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