When buying or selling real estate, the transaction often requires granting an easement to provide access, either physically or to utilities like water or electricity. Briefly, an easement is the right of one property owner to use another's property for a specific purpose. Commonly, easements are in the form of a right of way that allows the owners of a neighboring lot to pass over another’s land to access their own. An easement could also allow placement of a well or access to a public water supply. Alternatively, a negative easement could provide that the owner of a lot will actually refrain from using his or her property in certain ways. For example, a view easement could limit the height of any buildings to protect the easement holder's views.
When acquiring property for a specific purpose, it is essential to make sure that you acquire all necessary rights to achieve your goals. For example, if you are purchasing property without direct public road access, you will need some form of easement to access the property. If you are purchasing property because of the great view, you may want to consider if a negative easement could protect that view long term. When evaluating whether an easement will achieve your objectives there are two key factors that need to be considered. First, does the easement’s scope fit your needs? Second, is the physical location of the easement appropriately defined?
Scope refers to how much and the kind of use the easement encompasses. For example, an easement for seasonal access to a single-family cottage would not include use for year-round access to multiple homes. The grantor will want to make sure that an easement deed is limited in scope so that it only includes the use that was contemplated. Conversely, someone acquiring an easement needs to ensure the easement is broad enough to meet his or her needs long term. So, if you’re buying a piece of land to develop, you need to be sure that any needed easements allow the uses you are planning for your project.
A clear definition of the physical location of the easement is important because the clearer the terms are, the less likely there will be disputes later. A property owner granting the easement does not want to grant broadly defined access of their entire lot. Therefore, language limiting the location is essential. The physical location could be defined in a variety of ways. It could simply state something along the lines of “existing road” or “existing well.” Alternatively, the easement could have a complete metes and bounds description that a surveyor could use to find the exact location. No matter how the location is defined, it is important that the description is clear and sets out what both parties agreed on.
Whenever buying real property it is helpful to consult with an attorney to ensure your goals are being achieved. An attorney can review the easement deed to make sure you are receiving what you bargained for.