Sometimes it’s necessary for someone to access your property. It may be the only way they can reach their home, or it may simply be for fun, such as hunting. If this is the case, an easement may be suggested. Check out everything your HOA should know about easements.
What Is an Easement?
An easement is basically the right to use someone else’s land. It does not grant the person possession of the land, but it allows them to use it. They can’t occupy the land, and they can’t stop anyone else from entering the property unless they interfere with the easement user’s use of the land. The landowner, however, can prevent anyone except the easement holder from using the land. An example of an easement is if you have a road on your property that is a great shortcut to your neighbor’s home, so you allow them to use the road to get to and from their home.
How Is One Created?
An easement is like any formal agreement, so it usually requires a contract, deed, or some other written document that details the easement. If the easement is an appurtenant easement, it usually is transferable if the land is sold. However, the contract for the property can forbid the easement from transferring.
A gross easement is usually considered a right of personal enjoyment, such as camping. These are usually not transferable if the land is sold.
What Happens if There Is a Dispute?
A lot of times, easements are originally written vaguely, so problems can quickly arise once someone starts using the land. For example, you may give someone permission to camp on your property. While camping, they decide to go swimming in a river on the property, which wasn’t mentioned in the easement. They may see this as part of camping, but you may not. If this occurs and there is no clear documentation, the courts must make the decision.
What Are the Rights Under an Easement?
Typically, as the landowner, you can do what you want on your land unless it interferes with the easement holder’s use. The easement holder has the right to do just about whatever is necessary to completely enjoy the purposes for which the easement was granted. Therefore, in the previous example involving camping and the river, the courts could very well agree that swimming is allowed because it was within the scope of camping.
An easement can be a little confusing, especially when determining what is and is not allowed. It’s always important to check the original document and any other supporting documentation to determine if a certain action is allowed.