Easement To Property (Legal, Recorded, Shared, Prescriptive)

easement, access to property

As a retired Lawyer I know that an Easement to Property is an nonpossessory interest one property owner has in land owned by another property owner.

The usual case is permission to cross someone’s private land to get to your land.

However, there are different kinds of easements and not all easements are equal!

What is an Easement to Property?

An Easement to Property is the right to use land belonging to someone else. You do not own the land over which you have an Easement. How you may use the land is controlled by the Type of Easement you have.

An understanding of Easements is necessary before you purchase Country or Homestead Property.

In the article that follows I will discuss the most common form of Easements to Property and what rights they give you.

I’ll also discuss easements that can result in litigation, monetary cost and heartache to Property Owners.

What Is A Legal Easement?

A Legal Easement is an easement that is Recorded in the same County Office where Deeds to Property are Recorded.

This easement is also called a Deeded Easement or a Recorded Easement.

It is the only type of easement that guarantees that you have a right to cross over or use any privately owned land that is between your property and the nearest County or Public Road.

This is the only type of easement that gives you the legal right to use someone’s private land to access your land when you do not have direct access to a Country Road or other Public Road.

No other type of easement gives you the legal right to cross someone’s private land to access your land.

If your easement is not a Legal Easement, any landowner whose property you have to cross over to get to your land has the right to put up a locked gate and keep you from crossing his land to access your land!

How Do You Know It Is A Legal Easement?

There are two different ways of knowing that an easement is a Legal Easement. They are:

  1. There is Easement Language written into the Deeds in the Chain of Title to the Property you are considering purchasing.
  2. The Deeds in the Chain of Title reference a document that is recorded in the County Deeds Office. The easement will be described in that document. 

If you are trying to decide between two pieces of property that the access to those properties crosses someone’s private property, have the Real Estate Agent get you a copy of the current Deed to each of the properties.

If there is a Legal Easement, the Deed will have Easement Language or reference a document that is recorded and contains the Easement Description.

Examples Of Easement Language In A Deed

An example of Easement Language is; “A non-exclusive easement 60 feet in width for ingress and egress over the existing road between the property and County Road 18 with the right to convey said easement to others.”

A non-exclusive easement is an easement that other people can use besides the property owner who has been granted the easement in his Deed.

An easement 60 feet in width does not mean the road to your property is 60 feet in width!

It means the easement goes outward 30 feet on each side of the existing road’s center line.

The road may only be 15 or 20 feet wide.

But the easement has room to move the road if it gets washed out or a portion of it sinks or becomes unusable.

Easements do not always come in 60 foot widths.

In many areas of the U.S. an easement may only be 50 feet in width.

Depending on the age of the easement, you may find some easements that have been in existence for several decades that are only 30 feet in width.

An easement for ingress and egress defines how the easement can be used.

In this case for ingress or coming on to the land served by the easement. 

Also for egress or going out from the land served by the easement.

In many cases the language may say; “for ingress, egress and utilities.”

This gives public utilities the right to come in over the easement.

Over the existing road between the property and County Road 18 is language that tells you the exact location of the easement.

Right to convey said easement to others allows you to pass the existing easement on to a future Buyer of the property if you decide to sell.

Most States allow an easement to be passed to future Buyers but it is nice to have that stated specifically in the Deed.

Another example of Easement Language might be; “Complete with an easement 50 feet in width running along the southern border of the Southwest Quarter of the Southeast Quarter of the Northwest Quarter of Section 14, Township 16 North, Range 4 West, Boise Meridian.”

This language also describes exactly where the easement is located.

This last language example sounds confusing to those who are not familiar with the Rectangular Survey System that has been used in many parts of the U.S. since 1784.

This system is used in 29 States including Alabama, Alaska, Florida, Mississippi, all States north of the Ohio River and west of the Mississippi River except Texas.

The rest of the U.S. uses either the Metes and Bounds System or the Map, Tract or Plat System.

Example Of A Document Recorded In The County Deeds Office

In some instances the Deed may have language similar to this; “Complete with an easement for ingress, egress and utilities as described in Miscellaneous Book 14 Page 397 Recorded in the Flathead County, Montana Deeds office.”

If there is language such as this in the Deed, you need a copy of that document to learn the type of easement and its location.

What If No Road Exists But There Is An Easement In The Deed?

Your first job as far as the easement goes is to determine if the easement is in a suitable location for a road.

Have a local road builder or construction company that builds roads examine the easement area.

Have them tell you if it is a suitable area for a road and give you a written report and estimate of the costs to build a road.

The road builder or construction company will probably do this for free because they anticipate being hired to build the road.

Give the report and estimate to the Seller and tell him the easement for ingress and egress must include the complete route set out in the estimate because it is the most feasible route to the land.

Tell the Seller you want him to build the road as set out in the estimate of costs. Road construction contains many risks that are best borne by the Seller.

The Seller will probably add the cost of the road construction to the price of the land.

If it turns out that the road can not be constructed on the easement or the easement does not cover the route needed for the road, do not buy the land!

Should I Buy Land Without A Legal Easement?

If it is necessary to cross over someone’s private land to access the land you are considering buying, you need a Legal Easement to avoid a lot of problems, headaches and possibly an expensive and lengthy court battle.

I do not ever recommend anyone purchase land accessed by driving over someone’s private property unless there is a Legal Easement.

Remember, a Legal Easement is an easement recorded in the County Deeds Office.

If there is any other type of easement, you are buying into a potential problem that is just waiting to happen.

Where Does The Easement Enter The Property?

You need an easement that does more than just reach to the property.

You need an easement that goes to the portion of the property most suitable for a building site!

Carefully examine the easement to see if it accesses the property near the best building site.

An acceptable alternative is to be sure that a good road can be built from where the easement enters the property all the way to the best building site.

If the easement does not enter the property near the best building site or if a road can not be built from the easement to the best building site do not purchase the property.

If the Title Insurance Policy insures an “easement to the property” but the existing easement does not enter the property near the best building site or at a location suitable for building a road to the best building site you only have an Insured Easement to the land, not to the best building site.

Country dirt road along side of property with a small dwelling and trees with fall colored yellow leaves.

What If The Easement Is Shared By Other Property Owners?

In many cases a non-exclusive easement for access to property is shared by many property owners.

When several people have an easement over the same road to access their properties there is usually no indication of who is to maintain the easement road.

In most situations the responsibility is shared by all those who use the easement to access their land.

It is common for those who live farther down the easement road to pay a larger portion of the upkeep because they use more of the road than others do.

There are some situations where each person accessing his land from the same easement road all pay the same amount for road upkeep.

That is a decision made by those who use the same easement to access their property.

To learn what the situation is where you are considering buying land, ask some of your potential neighbors how upkeep of the road is shared?

This should be done prior to purchasing the land and it should be a factor in the decision whether or not to buy land there.

Be sure to ask about the average cost per year for road upkeep and how the cost is distributed among those who use the easement road.

In the process of questioning future neighbors, you may be able to foresee potential problems in road upkeep.

Those potential problems may be sufficient to send you looking for land elsewhere!

If you are the only person who uses the easement then all of the upkeep will be your responsibility.

Don’t bargain for more upkeep than you can afford!

When evaluating a road on an easement be sure to look for improvements that can reduce the yearly upkeep costs.

An example of those improvements are steel or concrete culverts placed under the road so as to drain water away from the road.

These culverts can help prevent a dirt road from becoming impassable from ruts and puddles during heavy rains and melting winter snow.

Can the Owner Of Land An Easement Crosses Interfere With Your Use Of The Easement?

A Legal Easement is a Nonpossessory Property Right held by the Easement Holder.

The Easement Holder does not own the land covered by the easement.

The Nonpossessory Property Right gives the holder of an easement the right to use property that they do not own or possess.

The Easement Holder can make repairs or improvements to the easement as long as they do not interfere with the rights of the owners of the property the easement crosses over.

The property that benefits from the easement is called the Dominant Estate and the property the easement crosses over is called the Servient Estate.

The existence of a Legal Easement across a Servient Estate prohibits the owner of that Servient Estate from interfering with your use of the easement as long as your use is in accordance with the terms of the easement.

As an Easement Holder you can not occupy the land or exclude others from the easement unless they are interfering with your use of the easement.

It is helpful to think of the rights of the Easement Holder and the rights of the Owner of the Servient Estate as a balance of rights and responsibilities.

The Easement Holder has the right to do those things reasonable and necessary to fully get the benefit of the easement.

The Owner of the Servient Estate may make any reasonable use desired of the easement as long as his use does not prevent the Easement Holder from accessing his land.

The key to understanding the usage the Easement Holder and Owner of the Servient Estate may make of the easement is the term reasonable.

What would a reasonable person do in the same or similar circumstance.

As long as both parties are reasonable in their usage of the land covered by the easement there is no problem.

What Happens When The Usage Is Not Reasonable?

If the Easement Holder or the Owner of the Servient Land uses the easement for an unreasonable purpose, the other party has a Remedy at Law.

If a Court finds the Easement Holder’s use of the Easement to be unreasonable the Owner of the Servient Estate has a remedy such as a court order restricting the Easement Holder’s use of the Easement to Reasonable Use.

If the Easement Holder damages the easement the court can award monetary damages from the Easement Holder to the Owner of the Servient Estate for injury to the Servient Property or cause the Easement Holder to lose the right to use the Easement.

An example of unreasonable use by an Easement Holder would be cutting down trees growing in the easement on the Servient Estate.

Those trees do not belong to the Easement Holder since the easement is a nonpossessory right.

The trees belong to the Owner of the Servient Estate and are his to remove as long as they do not stand in the way of the usage of the easement.

In some States if an Easement Holder cuts down tress that do not belong to him the penalty for doing so is treble damages.

The Easement Holder would have to pay the Owner of the Servient Estate three times the value of the trees!

Another unreasonable use by an Easement Holder could be improper widening of the easement road or faulty grading of the easement road causing damage to the easement road or damage to the Servient Estate.

Reasonableness need not be specifically spelled out in the easement.

If the easement is to access the property on which you live, reasonable use is your accessing the property along with the normal visits by family and friends.

If you later decide to have a commercial venture on your land such as a Pay Lake where people can come and fish, the easement will not cover that commercial use.

The Servient Estate Owner could get a Court Order preventing the usage of the easement for any commercial purpose..

If the Court finds the Servient Land Owner’s use to be unreasonable the Easement Holder has a Remedy. 

If the Servient Land Owner puts up a locking gate preventing the Easement Holder from accessing his land the court can order the locking gate removed.

If interference with the easement reduces the value of the Dominant Estate, the Court can award monetary damages to the Easement Holder.

The Servient Land Owner would have to pay the damages to the Easement Holder.

Another example of unreasonable use by the Servient Land Owner could be developing the easement area in such a way as to make upkeep of the Easement Road difficult or impossible.

One way this could be done is to plant trees and bushes in a manner as to make it difficult to snow plow the Easement Road by planting trees and bushes so the snow can not be pushed off the road and onto the side of the easement.

What Is A Prescriptive Easement?

A Prescriptive Easement is where a land owner has crossed over someone’s private property long enough that under the Law of that State they could go to court and obtain an Easement by Prescription.

To obtain an Easement by Prescription, the use of the access to the property has to be open, hostile, notorious, continuous for the specified period and under a claim of right.

An Easement by Prescription can not be obtained if permission was given by the Land Owner whose land is being crossed.

If there was no permission the usage may have been tolerated by the land owner over whose private land the neighbor had to cross to get to access his land.

Prescriptive Easements are fairly common in rural areas where friends lived next to each other for years. It is fairly common to allow a friend who lives next door to access his land by driving across his neighbor’s land.

The problem arises when the one whose land was driven across sells his property to a new land owner.

There will be no easement across the property listed on or referenced in the new land owners deed.

So the new land owner can put up a locking gate preventing anyone from crossing his property.

If that happens, there can be a lengthy, expensive law suit that may or may not be won by the land owner who can not access his land.

Country property with dirt road access blocked with fence and sign saying no trespassing on it.

Are Prescriptive Easements A Problem?

The quick and simple answer to this question is; Yes, Prescriptive Easements can be a BIG problem!

The new land owner may not want someone driving across his land.

If there is no language in his deed or reference to a document that is recorded preventing it, he can put up a locking fence to prevent anyone driving across his land.

How can this problem be solved?

One way is to take the new neighbor to court.

If you can prove that the road across his land has been used to access your land for the required number of years you can win the lawsuit.

In that case the neighbor will have to remove his locking gate and let you access your land.

By going to court and winning you now can get to your property but, it can be a losing proposition in the long run.

This process takes time, money and you may not win.

If you do win you may have made an enemy out of your neighbor.

It is not the wisest course of action to live next door to an enemy and have to drive past him each time you enter and leave your land.

Another way to try to get to access your land without making an enemy of your neighbor is to offer to purchase an easement across the road to your property.

This might work but you are at the mercy of what the neighbor feels the easement is worth.

You could offer the neighbor a land swap.

Trade a portion of your land to him for the portion of his land the access road is on.

I know of situations where this has worked out for both parties.

But those times are definitely few in number!

Do you see why you should never purchase land accessed by driving across someone’s private property unless there is a Legal Easement allowing you to do so?

Never take anyone’s word that a Legal Easement will be easy to obtain after you buy the land!

If it will be easy to obtain, then it will be just as easy for the Seller to obtain it as a condition of your purchasing the land.

Again, if there is not a Legal Easement when the land can only be accessed by driving across someone else’s private land, do not purchase the land!

Prescriptive Easements And Adverse Possession

This situation can be common in rural areas.

Here is the usual way it arises.

A landowner fails to realize that a portion of his land is being used by an adjoining neighbor.

A fence might be placed a few feet over on a neighbor’s land. 

There might be a building built that ends up with a portion of it being on a neighbors land.

In the fence or building situation, if the mistake is not found and the fence or building lasts for the period of time in that State’s Adverse Possession Laws, then the neighbor who has been occupying someone’s land can go to court and obtain an Easement by Prescription.

Once a court recognizes an Easement by Prescription it will be recorded in the County Deeds Office making it a Legal Easement.

The use of someone’s land for this period of time must be open, notorious, hostile, and continuous for the period of time in that State’s Adverse Possession Laws.

What Is An Unrecorded Easement?

An Unrecorded Easement is an easement that does not show up in a Title Search because it is not recorded in the County Deeds Office.

There are 3 main types of Unrecorded Easements.

They are:

  1. An Easement by Prescription also called a Prescriptive Easement
  2. An Easement by Implication
  3. An Easement by Necessity

A Title Report or Abstract of Title will tell you of any Legal, Recorded, Easements that benefit the land you are buying or that burden the land you are buying.

These reports do not tell you of Unrecorded Easements and Title Insurance does not insure against Unrecorded Easements.

The most common Unrecorded Easement on a piece of property is the presence of a road across the property.

There could also be a trail, cattle path or a plastic pipe running from a water source to a neighboring property.

When you purchase land you are deemed to know everything that a thorough walkover of the property would show.

If you fail to thoroughly inspect the land and an Unrecorded Easement is discovered after you have purchased the land, you will have to live with that easement if it has been used long enough that a court will grant continued usage of it.

Easement By Prescription

If a user has openly used or crossed someone’s land for the required number of years as stated in that State’s Law, that user may be able to obtain from the court an Easement by Prescription also called a Prescriptive Easement.

The usage of someone’s land must have been open, notorious, hostile, continuous, under a claim of right for the specified period of time and without the property owner’s permission.

The period of time needed to establish an Easement by Prescription varies from 5 to 21 years depending on the State.

If you discover this type of usage on land you are considering purchasing make the removal of that usage by the Seller a condition of the Sale going forward.

No matter which State you may be located in, you can not gain an Easement by Prescription over Federal or State Land.

Easement By Implication

If a property owner subdivides his land and sells a portion of it and the portion sold is accessed by a road across the land not sold by the original property owner and the new property owner uses that road, a court can grant an Easement by Implication.

The new property owner must use the access road across the original owner’s property openly and with the original owner’s knowledge.

The grant of an Easement by Implication to the new property owner can be done even if there is another way for the new property owner to access a public road.

Easement By Necessity

An Easement by Necessity is where one parcel of land is completely landlocked.

There is no way for the owner of that land to access a public road.

This is an easement created in Law because the easement is necessary for the reasonable use of the landlocked property.

Obtaining an Easement by Necessity involves a law suit in court which takes time, money.

During this time the landlocked parcel can not be accessed or used.

What About Easements Across The Land You Are Buying?

Most purchasers of Country or Homestead Property are looking for property where they can enjoy peace and quiet.

If there is a Legal Easement across the land you are looking at what effect will it have on your peace and quiet?

A few years ago we looked at a piece of property in the mountains of North Idaho.

There was a nice cottage with a fenced in yard, a gorgeous view to the east across a valley, a good well, room for a garden and it was off grid.

There was a separate building that would function as a shop while a better one was being built.

The price of this property was well within reason.

In the less than 30 minutes we were looking over the property with a Realtor, two cars drove by within a 100 yards of the cottage.

After we had left the access road and entered the driveway to the cottage, the access road turned and crossed through the middle of the property we were looking at.

There was no need to inquire if the easement was a Legal Easement or an Easement by Prescription.

Fact is the easement was close enough to the cottage to disturb our peace and quiet, our peaceful enjoyment of the property.

Needless to say, we left before completing a walkover of the property.

If there is a Legal Easement that gives someone else permission to cross that land or use that land in any way, your purchase of that land is subject to that easement.

If you can’t live with that easement, do not buy that property!

If an easement breaks up the unity of property you are looking at but it is not close enough to the house or building site to disturb your peace and quiet, use the fact that it breaks up the land as a bargaining chip to get the price down.

If possible see if you can camp on the property for a couple of days.

This allows you to get a feel for the use pattern of an easement and you can see if the land has the peace and quiet you want.

Several years ago I looked at a piece of property that had a large pond on the back side of the land.

About 200 yards away from the pond was a pasture with several cows grazing in it.

There was a gate in the fence bordering the property.

Between the gate and the pond was clear evidence that there was a path where the cows were allowed to get to the pond.

An inquiry revealed that the adjoining property owner had been told that his cows could be let out of the pasture each day to drink from the pond.

I was not interested in sharing my pond with cows each day and I was not interested in having a neighbor who would be upset if I kept his cows from their source of drinking water.

I scratched that property off my list of possibilities.

If you discover evidence in a thorough walk over of a property of usage by a neighbor, even if there is not a Legal Easement allowing that usage, do you want the hassle of dealing with potential problems from neighbors?

Beware Of Easements In Gross

An Easement in Gross does not benefit a specific parcel of land.

Instead it is an easement allowing the crossing of land for a specific purpose such as hauling logs, accessing a fishing spot or to get to a hunting area.

If you find evidence of this type of easement in the deed to property you are considering, Beware!

You have little to no control over the traffic crossing that parcel of land. I’d look for another parcel of land!

Easements For Utilities Or Pipelines

It is common for public utility companies such as electrical and phone companies to be granted the right to use an easement to bring their utilities in to a parcel of land.

There is usually the words”an easement for ingress, egress and utilities” or similar wording in the easement.

In rural areas you may discover an Easement for Pipelines.

This occurs in two situations.

The first is where someone is taking water off the parcel of land you are considering.

The second is where you would have the right to take water off an adjoining parcel of land.

Be sure that easement allows for “the laying and maintaining of a pipeline” all the way from the water source to the property line.

I do not recommend buying land with a shared water source when the water source is on another piece of property.

You can read why in this article I wrote on this subject, “Shared Water Source (Problems, Laws, Agreements”.

Caution As To Land Fronting A County Road And Realtors

Be cautious of land advertised as “Fronting on a County Road” or “Having County Road Frontage.”

That does not mean there is a suitable way to access the property directly from the County Road.

There could be a cliff, ravine or other land feature that prevents direct access to the County Road.

If that is the case, you will need an easement to access the property.

Beware of the Realtor who tells you, “you don’t need an easement to get to the property. No one around here uses easements. Everyone is very friendly and besides there is an Easement by Prescription.”

If that is the case, the Seller will have no trouble getting a Legal Easement to the property along the existing road.

Make the obtaining of that Legal Easement a condition of the Sale of the Land.

Never buy land accessed across someone’s private land without a Legal Easement in place before the sale is completed!

This article does not cover all there is to know about easements.

Easements is only one area of importance when looking for and purchasing country homestead property.

Other important topics include water rights, zoning, financing country property, how to avoid problems in owner financing, how to evaluate country property and why a survey is necessary.

All of these topics and so much more are covered in our Country Homestead Buyer’s Course.

The lack of knowledgeable education BEFORE you look for property can turn your country paradise into an EXPENSIVE disaster.

That’s why I created this course for you so you can avoid the pitfalls and headaches that can happen when you are not prepared with valuable knowledge beforehand.

Related Questions

Can you get an Easement across Government Land?

Access to property across Federal and State Government Land is by Permit, not by Easement.

The permit can be a year to year permit with a fee each year and specific requirements that must be met to obtain the permit.

To learn what is necessary to obtain the permit, contact the nearest Federal or State Government Land Office.

Your Realtor should know where that office is located.

Can an Easement be terminated?

Under certain circumstances an Easement can be abandoned.

Abandonment takes more than the Easement Holder’s intent to abandon the easement.

Abandonment is usually defined as “the Easement Holder’s non-use of the Easement for an extended period of time.”

Different courts may define “extended period of time” differently.

John Brownlee

John is a retired Lawyer, Health Care Provider and has a certificate in Pest Management Technology. He teaches people how to locate, evaluate, and purchase Country and Homestead Property. He and his wife, Linda, share their knowledge of homesteading skills and safe pest management.

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