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How much do you know about easements? – II

A few weeks back, our blog touched on the idea that while more people than ever now have a very solid core knowledge of the real estate process, there are still certain topics that might be entirely unfamiliar or unduly confusing.

By way of illustration, we began exploring easements, a common component of many residential real estate transactions. To recap, easements are essentially legal mechanisms granting the holder the right to use or access property they do not otherwise own.

In today’s post, we’ll continue this important discussion in the hopes of providing greater clarity for prospective homebuyers.

How are easements typically created?

Easements are generally created via formally executed legal documents like contracts, wills and deeds. What this means is that in order for an easement to be recognized in court, it will need to adhere to certain legal conventions, including being written, signed and properly delivered.   

Does this mean that courts will never recognize the existence of an easement outside of the four corners of a document?

There are scenarios, albeit limited, in which a court will actually imply — and create — an easement based on the circumstances of an individual case, including easements of necessity.

What exactly are easements of necessity?

As you might surmise from the name, easements of necessity are implied by courts in those scenarios where it’s necessary in order to provide access to an otherwise landlocked parcel of property.

Why are the terms “affirmative” and “negative” sometimes used in relation to easements?

In the vast majority of cases, the easement will be described as “affirmative,” which authorizes the use of another person’s property.

In some instances, it’s possible for the easement to be described as “negative,” which actually limits the manner of work that can be performed on neighboring property or property in close proximity. The context for negative easements is typically to preserve a landowner’s view or access to light.

Please consider speaking with an experienced legal professional in the event you have question or concerns relating to easements, or other land use or zoning issues.  

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