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What’s the difference between implied easements, express easements and prescriptive easements?

What’s the difference between implied easements, express easements and prescriptive easements?

Easements are among the most common issues discovered in a title search and one that sometimes doesn’t come to light until after you buy a property. That’s because often there’s no written record of an easement, making title insurance that much more critical when purchasing real estate.

 

What’s an easement

Typically, an easement allows others to use part of your property. It can be for a road on your property that grants access to a landlocked apple orchard behind it or to allow the gas company to run pipes through your property. Easements are formed in three different ways: through a longtime understanding, with a formal agreement or through established use.

 

Implied easements are informal agreements formed according to certain circumstances.

Implied easements come without any written or contractual agreement but are still legally binding. While implied easements don’t allow someone to own a portion of another party’s property, they do allow someone to trespass on it so long as doing so doesn’t disrupt the property owner’s enjoyment of the property. They arise when a property owner sells a portion of their property or subdivides it entirely and sells the whole parcel.

While they are informal agreements, implied easements must meet these conditions:

  • They must be reasonably necessary to enjoy the original piece of property.
  • The land must have been divided at some point and parts were sold to new owners.
  • The need for the easement must have been established prior to the property division.

The lack of any written agreement is often the reason easements don’t come to light until after a real estate purchase is complete and alone are reason enough to purchase title insurance.

 

Express easements are formal agreements created by a deed or will or property conveyance.

From a title search perspective, express agreements are the easiest to discover because they leave a paper trail through a deed or will. estate documents, deeds or sales transactions. They’re as simple to create as two parties agreeing to the same terms of use for a portion of the property.

Express easements can come in the form of “affirmative” or “negative” easements. Affirmative easements essentially grant the easement holder the right to use a stated portion of land for a specific purpose; whereas negative easements prohibit what an owner may do with a property, such as build a structure or erect a fence that blocks the original owner’s view

 

Prescriptive easements result from continuous use of privately-owned property.

Like implied easements, prescriptive easements are typically not documented and can be difficult to uncover in a title search. Unlike implied easements, prescriptive easements can take on a hostile nature.

Prescriptive easements are created when:

  • A trespasser uses another’s property openly and notoriously—that is, blatantly and without sneaking around.
  • A trespasser uses the property as though they were an owner (for example, fishing on someone’s private lake).
  • The trespasser’s use of the property is continuous for the statutory period (20 years in Wisconsin and 15 years in Minnesota). Note that through “tacking,” where one trespasser passes the land to another, the years can add up quickly.
  • The trespasser’s use is adverse to the true owner, meaning it is without the owner’s permission and contrary to their wishes.

 

Concerns about an easement on your property? Contact a trusted Realtor or title professional.

Easements can be complicated, and ending or adjusting them can involve thousands of dollars. If you have questions about creating or terminating an easement, don’t go it alone. Don’t know a licensed title agent? Ask your Realtor for a title industry partner they recommend. And never buy a property without title insurance to protect your investment.

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