What you need to know about easements that give others use of your property
Larry LaSov's troubles began three years ago when he bought his dream home in Glyndon, Maryland, 20 miles north of Baltimore. While there were any number of reasons to purchase the four-bedroom Colonial on 11/3 acres, it was an unlikely one that most attracted LaSov: His real estate agent told him about an existing property use agreement — known as an easement — that let the state maintain a 1/3-acre stand of century-old dogwoods, maples, and oaks separating LaSov's lawn from his neighbor's. "We were thrilled when they said we couldn't touch them," LaSov says. "That meant no one else could either."
The 49-year-old CPA's enthusiasm dimmed considerably, though, a few months after he moved in, when a truck arrived carrying about 250 saplings to be planted next to the existing stand of trees, creeping further onto his lawn area. That's when LaSov found out that the state's right to his property went well beyond just the existing trees. It also included an additional 30 percent of his lot. "The easement comes to within 35 feet of my house," LaSov says.
Since then, LaSov has spent thousands of dollars and countless hours in legal wrangling trying to reclaim more of his lot, with no success. Meanwhile, as the trees multiply and the lawn area diminishes, the value of his house has dipped by at least 10 percent. "If only I'd known," LaSov laments, "I would never have bought the house."
The conservation easement plaguing LaSov is just one of many kinds of easements that homeowners have to worry about. Simply put, an easement grants someone besides the property owner the right to use or pass over a specified part of the land for a particular purpose.
Many residential properties in the United States have utility easements that were put in place decades ago. These typically run along property lines or encroach on lots by a few yards and are reserved for gas, electric, and telephone companies to install and maintain their cables, pipes, and poles. In some cases, they can mean frequent visits by repair trucks and crews. Even more intrusive can be easements for water supply, storm drainage, and sewer maintenance, because these sometimes cut straight through a yard. If a sewer pipe breaks, for instance, an entire backyard or even a driveway may be torn up to repair it. And perhaps the most potentially annoying easements are those that give a neighbor the right to use part of an adjacent property because his driveway crosses it — a frequent occurrence on irregularly shaped properties and flag lots (which are separated from roads by surrounding lots).
Most utility and conservation easements exist in perpetuity and are transferred from property owner to property owner. Other easements, such as a neighbor's access to a strip of your backyard to get to his own, may have a limited life and may be terminated or renegotiated at regular intervals. Either way, experts say, home buyers should find out everything they can about easements on a property before agreeing to purchase it — or risk a raft of headaches. If a homeowner unknowingly builds on, blocks access to, or improperly uses land on which an easement exists — however innocently — the result can be costly fines and having to undo pricey improvements to the property. "We've seen case after case where fixing an easement problem after the fact is expensive or even impossible," says Alan Hummel, vice president of the Appraisal Institute, a trade group in Chicago.
Buying homeowner's title insurance while negotiating the purchase of a house is a good first step in tracking down easement information and protecting yourself against future easement problems. This is often sold as a "package deal" with lender's title insurance, which mortgage companies require home buyers to purchase in order to secure a loan. On a $200,000 house, for instance, lender's insurance alone might cost $800; homeowner's title insurance alone, $1,000; or a combined policy, $1,050 (all onetime fees). The lender's title insurance covers the bank for the amount of the mortgage, while homeowner's title insurance protects the owner for the full value of a property.
Included in the fee is the insurer's title report, which carefully examines the property deed to make sure it is free and clear to change hands — and should note any easements attached to it. Most easements come to light this way, but with homeowner's title insurance, if a problematic easement is overlooked during the title search and surfaces later, the homeowner can be reimbursed for the amount that the property is devalued. (Such title insurance will not, however, cover the cost of any work done that might need to be undone.)
If the title search indicates that easements are attached to the deed, the next step is to get a copy of the actual easement documents. The title insurance company may be able to provide them, for a fee; or they can be obtained from the local register or recorder of deeds (or call your town hall or county courthouse for the name of the municipal office that holds these documents).
Any time an easement on the title report raises concern or is confusing, you may want to consult a real estate attorney to review the language. One example of a "red-flag" easement would be a shared driveway agreement with no maintenance provision. Depending on the nature of your concerns, you may then need to hire an appraiser or surveyor (to settle boundary questions, for instance), a civil engineer (to assess a problem utility easement), or an environmental specialist (if a conservation area or geological rights are at issue). Under your guidance, these professionals can closely examine public plat maps and geological surveys to find out more information.
But a title insurance report doesn't always have to uncover every easement, cautions Elisa Cavalier, general counsel for the Pittsburgh History and Landmarks Foundation. In Waco, Texas, for instance, one of real estate broker Diane Wilson's clients had a shock when she was about to put her house up for sale. "It had a highway easement on it that she hadn't known about," Wilson says. The Texas Transportation Department had records of the easement, but nobody else did. "We didn't discover it until they put stakes in her yard," says Wilson. "And she found out they plan to use it to turn a two-lane road into a four-lane road."
In some states, and particularly in rural areas, the title report doesn't have to indicate underground sewer or storm drain systems, highway easements, or geological rights. "You may need to have a professional familiar with such easements do a separate search for that information," says Cavalier.
Leave Nothing to Chance
Just as tricky as locating existing easements is negotiating a new one with a neighbor. It's critical that the deed drawn up be extremely precise about the terms of the easement, a bit of advice that experts say homeowners frequently ignore. A shared driveway, for instance, should clearly specify its dimensions, who maintains it, and to what degree and how it can be used. This is to avoid irritation in the future if the nice neighbor who signed the original easement agreement sells the house to someone less concerned about parking below your kitchen window. "If the easement is specific enough and obviously being abused, the homeowner may be able to sue the neighbor," says real estate attorney James V. Magee Jr., who practices in Ohio and Kentucky.
As with buying a house or having trouble with an easement, the best course for anyone negotiating or donating an easement is to hire an appropriate expert to manage easement issues. That was Anthony Corapi's approach when he sold an access easement to his neighbor for $10,000 in 1993. Next door to his home at the end of a cul-de-sac in Knoxville, Tennessee, was the very deep backyard of a house that fronted on a neighboring street. The owner wanted to get to the back of his property by cutting across a corner of Corapi's front yard. Access to this portion of his property didn't seem unreasonable to Corapi, but he worried that his neighbor, or someone who owned the home later on, might build a new house on the back of the lot. "They said they just wanted an easier way to do yard work, but I didn't want to come home one day and see a foundation being poured," he says.
Corapi paid an appraiser $500 to estimate what the easement was worth to his neighbor, as well as the loss of value to his own property. The appraiser also provided the lawyer with the language to use in writing the easement, which included specifying the size of the access and its purpose. Because Corapi handled this so conscientiously, when he put his house up for sale months later, the easement wasn't an issue. "I felt I'd been a good neighbor, but I'd also protected my investment and the value of the property for future owners," says Corapi. "And the $10,000 wasn't bad either."