FAQs About Easements on One's Property

Answers to commonly asked questions about property easements.

It's easy to say what an easement is: a legal right to use someone else's land for a particular purpose. But what does that mean in actual practice, particularly when it comes to issues like home improvements and neighbor relations?

If I'm building a larger house, do I need to worry about utility easements?

I'm planning to add a new room onto my home. When I bought my house, I recall seeing a city sewer line easement in the title report. I'm pretty sure the addition I want to build will be located over the sewer line easement. Do I need to worry about the easement?

Answer

A homeowner should avoid interfering with the city's easement rights. Sewer and utility easements grant a right to a utility company or local municipality to use someone else's land. The allowed use varies from easement to easement, but in most cases, the landowner is not allowed to interfere with that use.

So, if there is a sewer easement across your property, even if the sewer lines are below ground, you can’t interfere with the allowed use, which may include repair or maintenance work the city has to do.

If you construct an addition over the easement area, you may find the city not only tearing down your addition but also sending you a bill for the demolition. Such an outcome might seem extreme, but if the sewer line bursts below your new addition and needs emergency repair, the city would need to take immediate action to fix the problem.

Before you abandon your dream addition, though, pull that title report out of your files and carefully review the language in the easement. It is possible that the easement specifically addresses the construction of improvements over the easement area. The easement may strictly prohibit such construction, or, alternatively, it may permit such construction so long as the improvement can be constructed in a way not to interfere with the city’s easement rights (which may include the right to access, maintain, repair, construct, and/or inspect the sewer line or underground utility).

A real estate attorney can help you review the easement and determine the extent of the risk you will assume if you build the addition over the easement.

We're putting in a pool; can we get rid of our neighbor's easement to cross our property?

I am planning to install a pool in my backyard. Unfortunately, my neighbor has an easement across my property and the trail my neighbor uses goes right across the spot where I want to put the pool. Can I get rid of the easement?

Answer

You didn't mention how you know about the easement, including whether it is in writing or understood orally, but if it is a valid and enforceable easement, you will be able to get rid of it only with your neighbor’s consent. A landowner cannot unilaterally terminate an easement. For this reason, your best shot at getting rid of the easement may be to get your neighbor to vacate the easement.

Before approaching your neighbor about vacating the easement, however, you should

  • Get a copy of the easement if you don’t already have one. To be enforceable, an easement must ordinarily be in writing (although it's possible your neighbor has a prescriptive or implied easement). To find a copy of the easement, you can research the public records (check with your local government to determine how to do this) or ask a title company to perform the search for you (usually for a fee).
  • Carefully review the easement to determine whether you have the right to revoke the agreement. Is what you believe to be an “easement” actually a “license”? Unlike easements, a license can be revoked by the landowner, and so will probably contain language saying something like, “This agreement may be terminated by either party for any reason upon 30 days notice.” Easements and licenses are similar and sometimes get confused.
  • Confirm that the trail used by your neighbor is actually located within the easement boundary. It's possible that the specified location of the easement is not where your neighbor’s trail is actually located. Maybe there isn’t a conflict after all. To confirm the proper location of the easement you may need to hire a surveyor. However, the written easement may include a description of the easement’s location that can be easily understood, even by people who aren't professional surveyors, so check.
  • Confer with a real estate attorney regarding the above issues and also whether there may be a legal basis upon which to argue that the easement has been abandoned or is otherwise not enforceable.

If it looks like the easement is enforceable, your best bet may be to ask your neighbor to vacate or relocate the easement. Be prepared to pay him or her to do so. Unfortunately, if your neighbor refuses to vacate the easement, you most likely will not be able to get rid of it.

To protect your rights, confer with a real estate attorney. Also, since conveyances regarding real property must meet certain requirements, an attorney can help prepare and properly place in the public record any agreements reached with your neighbor.

How do I allocate costs of repaving a driveway between my two neighbors with easements to use it?

Because of the configuration of our properties, my two neighbors have easements to use my driveway. I bought the house knowing that this was the case. However, with all the traffic along my driveway, the road is getting a bit torn up and needs to be repaved. Must I bear the costs of repaving the easement by myself?

Answer

Let's start with some background. Private easements are a legal right to use someone else’s land for a particular purpose. If your title is burdened by an easement; or in your case, two easements; you have no choice but to allow your neighbors to use your driveway.

When you bought your property, your title insurance company and attorney probably alerted you to the existence of your neighbors’ easements. Sometimes, an easement-maintenance agreement will also be on file with the county clerk. Such an agreement would address this very issue; without it, you have no crystal clear means of forcing your neighbors to pay their fair share, since you own the primary parcel.

In a perfect world, your two neighbors would recognize the problem, just as you have, and offer to divide the costs in three ways. If they don’t come to this solution on their own, your first step should be to try to negotiate this arrangement with them. If one or both of them refuse, you have a few options.

Your first option is to do nothing, allow the roadway to further deteriorate, and essentially force them to the bargaining table. The downside here is that this will take time, and you also want to have a nice driveway for yourself.

Another option is to have an attorney write a letter to both neighbors essentially threatening to cut off their access to the driveway if they do not agree to a reasonable contribution. This will surely anger them, but might frighten them enough that they contribute at least something to the renovation effort.

Your final solution is to actually make good on that threat and block their access to the driveway. This is playing hardball, because a court of law would surely force you to remove the barrier to the driveway if your neighbors have a rightful easement allowing them to use it. But it would force your neighbors to retain attorneys to get a court to order your compliance. The time and money involved in such an action might convince them to come to the table with at least some cash to help you pay for the cost of repaving the road.

How do I grant an easement that's temporary, and only for one person?

The owner of a vacant lot next to mine is building a new home. She has asked whether I will grant her an “easement” to use my driveway instead of building her own. While it is possible to construct a new driveway on her property, our lots are located on a rocky hill, so constructing a new driveway will be expensive. I don’t have a problem allowing her to use my driveway for now, but I want to have the ability to stop her access in the future. And I'm especially uncomfortable with the idea that she might sell the place and I'd have to allow access to someone I don't even know. Can I grant an easement that is temporary and only for my soon-to-be neighbor?

Answer

The law does provide a possible way for you to limit use of your driveway to your soon-to-be neighbor and retain the right to revoke or terminate access. However, the agreement will be called a “license,” not an “easement.” Unlike an easement, a license can normally be revoked at any time, for any reason.

If you grant your neighbor access under the terms of an easement agreement, you may find it difficult to revoke, including after your neighbor sells her property. Easements grant a right to one person to use property that is owned by another. Often they are recorded with the county clerk and made a part of the public record. In most cases, the party who is granted the right must agree before that right can be revoked (taken away).

On the other hand, a license agreement doesn't “run with the land” and may be revoked by the person who grants it. License agreements may allow temporary use of your property that is similar to the use allowed by an easement, but with a license you will retain significantly more control.

A license agreement doesn’t have to be in writing, but it may be a good idea to put yours in writing. Doing so will help eliminate future disputes over what you and your neighbor agreed to. For instance, if you agree that she will help pay to maintain the driveway or to indemnify if she gets hurt using the driveway, you don’t want a “he said, she said” argument over what was agreed to.

You can craft the license agreement to protect your interest by including terms that expressly:

  • state your right to unilaterally, and for whatever reason, revoke the license
  • limit use of the driveway for a specific duration (such as two years), even though you retain the right to revoke at any point during that term
  • prohibit use of the driveway for any home business your new neighbor may operate (in which case you might see an increase in traffic),
  • obligate your neighbor to indemnify you in case she, or a guest of hers, is injured while using the driveway, and
  • require your new neighbor to pay for, or share in, maintenance costs during the duration of the license.

The necessary terms will be specific to you, so hiring an attorney to help draft the license agreement is a good idea.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
NEED PROFESSIONAL HELP ?

Talk to a Real Estate attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you