What Is an Easement and How Can It Affect a Home I Buy?

An easement can affect where you build, what you plant, where a fence goes or who is allowed to cross part of your lot. Knowing about it before you remove contingencies gives you time to ask questions.

I'm Jeanette Nelson, a REALTOR® with Jeanette Nelson Real Estate, Keller Williams Realty, serving Orange County, Huntington Beach, Costa Mesa, Fountain Valley, and surrounding areas. This is general information, not legal advice. For questions about a specific easement, a real estate attorney or your title officer is the right person to ask.

The California Department of Real Estate (DRE) Reference Book describes an easement as a right, privilege or interest limited to a specific purpose that one party has in the land of another. Easements are a type of encumbrance that affects the use of a property, rather than a money claim like a lien.

The DRE explains two main kinds:

• Appurtenant easements benefit a neighboring piece of land. The land that benefits is called the dominant tenement, and the land that carries the burden is the servient tenement. These pass automatically when the property sells.
• Easements in gross belong to a person or company, not a neighboring lot. The DRE gives public utilities as the common example, with rights to place poles and wires over private land.

Unless an easement is described as exclusive, the owner can generally still use that part of the land in ways that don't interfere with the easement.

According to the DRE, easements usually come about in one of three ways:

1. In writing, through a deed, a recorded agreement or a reservation when land was divided.
2. By implication of law, such as a "way of necessity" when a parcel would otherwise have no access.
3. By long use, called a prescriptive easement. The DRE explains that continuous and uninterrupted use for five years can create one when the use is open, hostile and under a claim of right.

The DRE also notes that a prescriptive easement can end after five years of nonuse, while an easement created by grant cannot be lost by nonuse.

Your preliminary title report. The California Department of Insurance explains that the title search results come to you as a preliminary report or commitment. Recorded easements are typically listed there as exceptions. Read that list carefully and ask your title officer to explain anything you don't recognize.

The property itself. The DRE points out that a pathway or sewer line may mean a neighbor has an unrecorded easement, and that standard title policies do not cover what could be discovered by inspecting the property. The Department of Insurance notes that extended coverage can insure against some unrecorded easements and encroachments, usually with a survey. Ask your title company what coverage options fit your purchase.

Most utility easements are not a concern for everyday living. The DRE notes that buyers commonly accept property with an easement for utility purposes. Others deserve a closer look, such as:

• A shared driveway with no written maintenance agreement
• An easement running where you hope to add a pool, a garage or an ADU
• A fence or wall that sits over the boundary line, which the DRE describes as an encroachment

If you plan changes, check permits and plans for the specific property with the city before you commit. Our guides on buying a home with an ADU and the escrow process may help too.

If an easement shows up on a home you love, I'd be glad to help you sort out what to ask your title officer or attorney while you are still in your contingency period. Call or text me at 714.366.8575 | DRE: 01397168, or contact me.