Real Estate Easements: 14 Ways

By Wing Leung

One reason why real estate is such a popular investment is that a variety of legal interests can be created, thus permitting great flexibility in forms of ownership and extent of use.

This most often is in connection with equity and debt financing. However, the flexibility of legal interests also is important to users of real estate. The most common example is the creation of a lease instead of a fee interest.

However, a lesser-known type of interest is the easement. An easement is an interest in real estate that gives the holder the right to use or occupy land in a particular limited way. Easements on an adjacent property often can increase the usefulness and value of property at a very small cost. The cost can either be a one-time payment made for the easement or a periodic fee. Alternatively, an owner can subject property to an easement for the benefit of another as a means of increasing cash flow. Sometimes, easements can be exchanged (cross- easements) so that no out-of-pocket outlay is necessary. The following paragraphs describe 14 types of easements that are used in connection with different types of real estate.

1. Rights of Way

One of the most common easements is the right to cross over the land of another. A right of way may be limited to a walking path or may extend to automobile traffic or the right to lay tracks for a railway spur (often necessary for industrial property). The holder of the easement, in addition to paying for the benefit, may be required to maintain the right of way. Use may be restricted to certain days or hours or may be unrestricted.

2. Driveway Easements

A variation of the right of way is the driveway-in- common that may separate two one-family houses, with half the driveway within the boundaries of each parcel. Almost always, this is a mutual easement, giving each homeowner a right of use.

3. Utility Easements

Also very common are utility easements, which permit telephone and electricity poles and lines, as well as natural gas pipelines, to be built on or under the land. Such an easement normally includes the right to enter the land to repair or operate the utility lines as well as the right to clear the right of way of all natural growth that may interfere with the utility service.

4. Light and Air Easements

This easement protects the right of an occupant of real estate to have access to light and air unencumbered by adjoining structures. The general rule in the United States is that there is no implied easement of light and air, so that absent an agreement, an adjoining owner may construct an improvement to any height and to the property line assuming this is not barred by local zoning or setback requirements. Consequently, a light and air easement must be created by express agreement.

5. Solar Easements

Just as with light and air, a property owner has no implied right to receive the direct rays of the sun in order to utilize a solar heating system. Consequently, the adjacent owner must agree either to remove trees or natural growth to permit the passage of sunlight or to refrain from putting structures above a certain height on his property.

6. Fence Easements

A property owner desiring to construct a fence may find it impossible to site it exactly along the boundary line. To the extent that the fence intrudes upon adjacent property, it constitutes an encroachment and the adjacent owner permission must be obtained. This can be done through grant of an easement that is permanent or for a specified period of time.

7. Aviation Easements

This easement permits aircraft to fly low over property (normally in the course of landing at an adjacent airport). In addition to barring any legal action for damages because of the noise created by low-flying aircraft, the easement may bar the landowner from building above a fixed height or may require him to trim trees already on the property.

8. Water Easements

Ownership of property adjoining a pond, lake or river does not necessarily carry with it riparian rights (the right to use such waters). Depending upon local law, such waters may be owned by the public or may be subject to private or another type of ownership. In either case, the property owner right to use the water may depend upon the existence of an easement.

9. Sport or Recreational Easements

The owner of property may grant to another (usually for a fee) the right to use the property for fishing, hunting, boating or other recreational purposes. These easements are sometimes known as novelty easements.

10. Pasture Easements

Common easement in the western United States is the right to use land for pasture. This permits a rancher to utilize large areas of land for raising livestock without owning the land.

11. Support Easements

There are two types of support easements. The subjacent support easement is the right of a landowner to have the surface of his land supported by the adjoining land (i.e., the adjacent owner may not excavate his land to the point where his neighbor land will collapse). The other form of support easement is used in connection with air rights. An owner seeking to construct an improvement in his or her land may need the right to place the improvement on columns driven into the ground owned by another. Normally, such support easements will be included in the lease or deed creating separate rights in the air space.

12. Drainage Easements

If land is subject to flooding due to excessive rainfall or the overflow of a lake or river, the owner may seek the right to construct a drainage ditch across the property of another. This problem also may arise where a large area is paved over (as in the case of a shopping center) so that the land is no longer capable of absorbing rainfall.

13. Flowage Easements

In the same situation as just described, the owner of flooded land may seek the right to have the water flow over the land of another, perhaps temporarily flooding it. The adjacent owner may be willing to grant such a flowage easement if the land is unimproved or will otherwise not suffer from the overflow.

14. Overhang (Encroachment) Easements

If property is improved by a building that reaches to the property line, overhangs from the building (e.g., window air conditioners) may encroach upon the adjacent property. It may be necessary in such cases to obtain an easement so that title to the adjacent land will not be made unmarketable.

Wing Leung is a partner in the Real Estate Industry practice in BDO New York office. This article originally appeared in BDO USA, LLP Real Estate Monitor newsletter (Spring 2013). Copyright © 2013 BDO USA, LLP. All rights reserved. www.bdo.com