Anytime a home changes hands, a title search is a must. This critical step in the closing process ensures that the home seller legally owns the property – without any claims from others, such as previous owners or relatives – and therefore has the legal right to sell. Without a clear title, lien or other claim on the property, your mortgage lender and insurer will not allow the sale to proceed.
One fraud that can come up in a title search is an easement, which gives an outside party the legal right to use the property or a portion of it. Simple things can be complicated, but they aren’t necessarily deal breakers for a home buyer. Read on for everything you need to know about this difficult real estate issue.
What is simplicity?
An easement by definition gives another person, entity or business the right to access or use another person’s property. Basically, a non-title entity gives an interest in the property. The owner still has full ownership and rights over the land, but this is limited by the rights of the easement owner who has the right to use it for certain reasons.
A private easement may be created between neighbors, for example, a public easement is typically between a property owner and a municipal agency or utility. For example, utility companies often provide easements for things like water service, sewer lines and drainage, and transportation. Easements can be above ground, below ground or both, and a single property can have more than one easement.
What are they used for?
It may seem strange that someone else has legal rights to your personal property, but simple things are more common. Many properties have amenities in place, such as utility companies having access to their lines. In some subdivisions or urban areas where space is tight, it may be convenient for neighbors to share a driveway. In coastal areas, neighbors (and even the general public) may have access to privately owned beaches or access to beaches that cross the property. Convenient locations are also accessible to public roads and vehicles.
Should I shop at a convenience store?
If something simple comes up during your title search, it doesn’t mean you should walk away from the deal. But it may place restrictions on how the property can be used or what improvements can be made, so it’s important to make sure you fully understand the restrictions before you buy. It is wise to consult with a real estate attorney on these matters.
In general, a problem only arises if the adaptation is not done correctly (which unfortunately happens) or if it affects the accessibility of the house. The latter situation often involves shared private roads – and especially those responsible for ensuring the maintenance of the road. Sometimes, a mortgage lender requires that there be a permanent registered easement in place; Some require a clear road maintenance agreement. Many lenders will deny your loan if it is not done correctly.
Happiness of property
The biggest concern for homebuyers, in particular, is how comfort will affect your enjoyment of your home — or your relationship with neighbors. Managing optimization can be challenging at times. You may not want to share a driveway with a neighbor, for example, or have a public footpath crossing your property.
Some simple things can affect what you can do on your land. For example, if a previous owner provided sunlight to a neighbor, you can’t build structures, plant trees, or create features that could block your neighbor’s sunlight. If they are in a scenic location, a neighbor may have an easement to protect their view, preventing them from making any changes or additions that might block the view.
If you plan to renovate, there may be implications. For example, if you’re buying an older home, there may be a historic preservation easement that dictates what changes you can make to your home. Previous owners may have provided development that prevented the land from being developed. And if you’re buying in a homeowner’s association, there may be conditions governing what you can do like add a porch or put up a fence—be sure to read your HOA’s rules carefully.
In general, if you want to make improvements or renovations to a property, ask yourself, will the easement allow you to make the changes you want?
Common types of melting
Don’t let the legalese confuse you – their simplicity is simple, straightforward concepts despite their complex-sounding names. Here are a few of the more common types.
“Appertentan” is a legal term that basically means accompanied by something else. So in a simple easement, the easement is legally attached to the property, not just part of a short-term ownership contract – the easement is a permanent feature of the property. It remains on the property regardless of who owns it and is transferred to the new owner of that property along with the title.
Think of a general easement as a “permission card” to use your home’s property. This type of easement allows a given individual or entity to use the property in a different way (rather than being tied to the property itself).
Access to utility companies is generally a good example – a local electric company can occupy one so it can legally access property to maintain power lines. In another example, a general easement may be granted to a neighbor so that they can fish in a pond on your property, or access the beach on your property.
Ease of prescription
An easement by prescription or prescription occurs when an outside party uses the property expressly but without formal permission to the extent that the use is lawful. This is sometimes called “adverse possession.” The length of time it takes for a prescription to be issued is determined by state law.
Ease of prescription does not necessarily involve malicious intent. An example would be if ten years ago your neighbor suddenly built their fence across your property line and you didn’t respond or complain. Another example might be if your neighbor unknowingly walks down a path that crosses your property and never stops or is told not to. This is why clearly defined property boundaries are important.
How to create or remove property easement
Typically, optimization can occur in one of three ways:
- The most common A Expressing comfort. This is when two parties agree on an offer, then create and sign a legal document detailing the difference. Again, you will want the help of an attorney in this matter.
- An Indirect simplicity It’s more casual. Here, both parties agree to some kind of common sense usage, but it is not written down. (Legally speaking, standard exponential optimization is a better idea.)
- An Simplicity in importance It occurs when one party has no choice but to use the other’s property. For example, if the first house in a development is technically on a private road in a small subdivision and you need to use that road to get to your own house.
However, it can be difficult to stop existing comforts. Some are easier to get rid of than others, especially if they come with a preset expiration date. Remember that you cannot interfere with the process of removing optimization.
A general homestead property granted to an individual cannot be relinquished unless the individual has passed on or agreed that it is no longer needed. If the concession was in place when you purchased the property, a court order may be required to terminate it.
Appeals and prescriptive offers may be terminated by formal written agreement with the other party. Whether or not the other side agrees is another matter – you could end up with a handshake or a court date.
An easement can be considered a legal right for one party to use another person’s land for a specific purpose. A variety of simple things are common and shouldn’t be seen as deal-breakers for home buyers. However, they can be complex, and simple things that aren’t well drawn or clearly defined can be illusory. Offers should be carefully reviewed by a real estate attorney before signing on the dotted line.