If you are purchasing or selling real estate, it is possible you may have heard of there being an “easement” on your property. Despite having “ease” in its name, however, an easement may not make your life any easier. In fact, if you have an easement on your property and do not disclose it when attempting to sell it, you could face some legal or financial trouble.
In simple terms, an easement is a nonpossessory property right that someone else living on another, typically adjacent property has over your own property. This can take one of two forms: an affirmative easement, which allows someone to use or travel across your property for a limited purpose; or a negative easement, which allows them to prevent you from doing something on your property that you would normally be allowed to do. For example, if your property is along a river, your next-door neighbor might have an affirmative easement to cross your property to access that river, if that is the only way for them to do so. Alternately, they might have an easement to prevent you from building on a certain part of your property if it would prevent their plants from getting sunlight.
An easement generally comes about through one of three ways. First, an easement can be created explicitly as part of a deed, purchase agreement, or other legal arrangement. Second, it can be implied from how the property has previously been used, either by its current owner or by past owners. Third, an easement can be imposed by necessity, such as when travel across someone else’s property is necessary for someone to reach a main road.
A related issue to easements is what are known as covenants, which are agreements that a landholder makes about how their land should be used. Like easements, they can either convey an affirmative right, dictating that certain activity must occur on the land, or they can impose restrictions on the property, limiting how the property can be used. Unlike easements, however, the covenant is attached to the land, not the people, meaning every person who purchases the property is bound by the covenant. For example, one of the most common forms of covenant is found through homeowners’ associations, which often impose restrictions on property owners on how their homes may look and how the property must be maintained.
Easements and covenants are more common than most people realize, and usually do not result in significant issues when a property is sold. That is, of course, unless the person selling the land fails to convey the existence of an easement or covenant, either because they forget to mention it, because they intentionally hide it, or because they do not know about it. When that happens, it creates several legal complications, including impacting what is known as clear title. Without clear title, it becomes substantially harder to sell a property.
There are a few ways to check to see if you have any easements burdening your land. First, you should check your deed any the purchase agreement you signed when you first bought the property to see if any easements were recorded. You should also check with your county’s land records to see if there are any easements for the placement of water or gas pipes, electrical cables, or other utilities. Finally, you should consult an attorney to help you perform a title check and ensure there are no existing legal issues that might hinder your sale.
If you are considering putting your home on the market or are attending to another matter that falls within real estate law, you should contact an attorney as soon as possible. David J. Lorber & Associates, PLLC, in Setauket, New York, offers comprehensive real estate representation. Real estate is a complicated area of law, but an informed legal counselor can provide valuable guidance. Call us at (631) 750-0900 or contact us online to schedule your free initial consultation today.
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