Can A Property Owner Block An Easement?

Many buyers of residential or commercial land think they can use the how they please. However, land is often has easements of various kinds that limit land usage. Read on to learn more.

 

Easement Law Principles

An easement grants a person or entity the right to use someone else’s land for something other than the intended means of the purchaser. These rights can be measured and defined by the purpose and character of the easement. The right to use land where an easement is claimed remains with the owner of the property, with the exception of when it is inconsistent with the character and purpose of the easement.

Where an easement clearly limits the use of the property across which the easement travels, the language of the easement determines how the property may be utilized. When easements are not clear, case law provides insight into uses into what may be allowed or disallowed.

Utility Easements

Utility companies will usually possess fully documented easements and the owner of the property should review those easements. These should be replied with the title records to the property. A utility may wish to prevent construction located near an easement and it may become a legal issue

As a rule, where there is a utility easement exists, either for underground utility pipes or wires, or above ground electrical wires, constructing a building or other permanent structure across the land subject to the easement will materially interfere with the easement holder’s free rights and will not be permitted.

Prescriptive Easements

A prescriptive easement grants a person the right, which a property owner may not prevent, to cross your land in the way they have been doing the last ten years.

The only way a party can acquire an easement by prescription across your land is by 10 years of continuous use. During that time, the party’s use of the land must be continuous, open, and notorious and hostile. The same easement by a prior party may go towards the ten year count in some cases. Also, you may not block the party from driving across the property but that means the party cannot expand the terms of the easement.

Establishing open and continuous use of your to obtain a prescriptive easement means a party’s use of your property must be seen. The party must establish that his or her use was appropriate to the type, size, and use of the easement he or she is trying to obtain. Walking across your property for 10 consecutive years may give a party the right to an easement for a walking path across your property, but it certainly does not give a party the right to drive heavy machinery across your property.

To establish hostility a party must prove that you did not give them permission to use your land. If a party comes to you and requests you to allow him or her to drive across a portion of your property for 2 years, those 2 years do not get added into the 10 years necessary to establish an easement by prescription.

One vital point regarding prescriptive easements is maintaining a claim for an easement by prescription, a party does not have to prove that his/her use of your property was exclusive.  In other words, if your neighbor continually drives up your driveway to access his/her property as well as you, he/she could establish an easement by prescription along your driveway.  This means, that if you ever decide to move your driveway to a new location and block your current driveway, if a prescriptive easement has been established, you cannot do so because your neighbor has a right to use it.

Conclusions

Property owners cannot just do whatever they like with the property. Easements needs to be dealt with and people who venture onto your property may be able to obtain a prescriptive easement. Research before buying a property regarding these matters is of paramount importance.

Source: https://www.asreb.com/2014/12/easements-land-really-belong/

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Craig Cherney is a trusted client advisor and a sought after real estate lawyer and expert witness who is hired by the nation’s top Real Estate Litigation Attorneys to help resolve their litigated real property matters.  Craig has appeared as a testifying expert witness before judges and juries in California, Arizona, Nevada and other jurisdictions across the country. Craig Cherney, Esq. Expert Witness Real Estate. 480-399-2342.  If you are litigating an easement case, Craig Cherney might be able to help you advance and win your case.