As a professional real estate agent, I frequently get calls from consumers asking questions about real estate and the buying and selling of it. I have listed below some of these questions. The answers I have written are general and brief and as I have suggested, you will need to consult a legal expert for more detailed information.
Dear Land Guy,
I am looking to buy a piece of property and hear a lot about “access” and “easements.” What should I know about these? Bryan D., Jackson, MS
As I have mentioned before in previous articles, having full rights to a piece of property is paramount in the landowner’s right to use and enjoy the land. Let’s look at both of these terms and analyze how they can affect the ownership of the land.
“Access” is the ability of the owner to have ingress and egress to and from their property. An easement is the right, privilege or interest which one party has in the land of another. State statues vary as to the rights it gives to landowners in relation to access and easements. Obviously the best access is through a legal easement or legal access which can come in many forms from property bordering public roads to recorded easements/deeds from landowners whose property has been acquired by deed or privilege by easement.
Many states have statutes that give easements through a variety of ways other than deeds. Let’s look at some of these.
Easement by Necessity: This type of easement occurs when a property is “landlocked”- meaning it is entirely surrounded by adjoining owners and there is no way the new owner can access his property. In some states, the landlocked owner of land outside of city limits has the right to secure an easement for ingress and egress across the lands of others. Usually this easement is across the shortest and most direct route to a public road and can be only so many feet wide. If the property you are looking at to purchase is landlocked, seek legal counsel concerning an easement before you make an offer for it.
Easement in Gross: This type of easement is typical of public utility companies, railroads, or pipelines whereby they are given access, which is not specifically attached to any specific land or the description. The purpose is usually to grant a company a right-of-way and ingress and egress to the property.
Easement by Prescription: This easement occurs when someone uses an easement over the land owned by another, in a continuous and uninterrupted use for a period of so many years, without receiving permission from the landowner. Because the landowner does nothing to stop the party using the easement, it becomes legal access after a certain point in time, which is 20 years in most states (although it varies so consult your attorney if need be).
Access and Easements are key components in being able to enjoy, manage, and utilize all aspects of your property. An attorney well versed in real estate law should be able to adequately inform the landowner or potential buyer of what types of access and/or easements are attached to a property and offer assistance in correcting any problems having to do with them. Although there are laws that can assist a landowner with access, it can sometimes be cost prohibitive and time taxing. It is always better to know up front what you are buying instead of trying to correct it after the closing.