“Can’t live with them, can’t live without them!”
First-time real estate buyers, especially buyers who are new to Nevada County, fresh up from the so-called “flatlands”, often ask themselves, “What is this ‘easement’ listed in my preliminary title report?”
Good question! A bad answer might be, “Oh, don’t worry about that. We see that all the time on these rural properties. You just live with that.”
The good answer is more complicated. Let’s start with some basics.
An “easement” is the legal (and enforceable in Court) right of some person or entity other than the owner of real property to use that real property for some limited purpose.
And, critically, an easement usually “burdens” or “encumbers” a particular property and benefits a different property. The former is called the “servient” property or tenement, the latter is called the “dominant” property or tenement.
Usually easements are not “exclusive” but are usually “non-exclusive”. This means that easements can be granted to more than one person or property over the same physical area (for example, an access easement to and benefiting different properties) and the owner of the property impacted by an easement can use the property—in all cases the key is there cannot be “unreasonable interference” with the permitted use of the easement. An example of the latter would be the owner of the burdened property planting an orchard over a neighbor’s driveway easement.
Dominant (Benefited) Property Buyers: Buyers need to be very interested in confirming that their new property has easement rights for electrical power and other utilities and access and egress. If the property fronts on a public road, these rights are typically not in doubt. (This is the usual “flatlander” experience, sometimes known as the “I don’t need no stinkin’ easements!” syndrome.) If the property is accessed over private roads or power lines come in from the back or side of the property, the buyer and the buyer’s real estate agent need to pay sharp attention to these details. Easements that are conveyed to a buyer and that benefit the property being purchased may (should?) appear in the interests acquired section of the preliminary title report, with the main interest being acquired a “FEE SIMPLE” interest.
Servient (Burdened) Property Buyers: Examples of easement purposes that might be of concern to buyers of burdened property—easements that burden or encumber the property appear in the Exceptions section of the preliminary title report: the right to use the property for a buried water line, for a buried sewer line, for overhead telephone lines or overhead power lines. Private road or driveway easements (access and egress or right of way easements) are common in rural areas.
Some of these uses might seem harmless or even beneficial, depending on a new buyer’s values. The local water company’s (read “NID” or “Nevada Irrigation District”) rights to maintain an irrigation ditch across the property might be very aesthetically pleasing to many buyers, as well as economically valuable if pasture irrigation privileges go with the ditch located in horse country. However, the public may have perfected rights of using the ditch-side path for walking, fishing, etc., and these rights (whether perfected or not) might prove troublesome to some buyers.
So, some initial, key questions for a buyer (and most likely at some point an eventual seller) of real property are:
● Uses: What uses can the easement be used for? What do implied uses of maintenance entail? Digging up a leaking water line to make repairs, for example, would be an implied maintenance use.
● Easement Owners—Who Can Use the Easement: What properties are benefited by the easement—who all owns the easement? How many homes will use the private road for access?
● Physical Location of Easement: Exactly where is the easement physically located on the real property? Does the neighbor’s sewer easement run under the newly installed swimming pool deck and cabana? Can’t tell from the title report? Get the recorded easement document from the title company. Still can’t tell, perhaps a surveyor needs to be retained to map it for all parties. If the exact physical location of the easement on the burdened property is not clear from the recorded easement document, perhaps the owner of the easement will negotiate and agree to signing and recording a document that limits and locates precisely the easement to avoid future confusion and disputes—and thus increase the value of the property to a future buyer.
● Beneficial Easements: Does the property have all the easements you need for the uses you contemplate for the property you are about to buy? Are there access easements all the way out to the public road—is that really a public road? Are these easements “developed” by an actual, physical road or are the easements only lines on a paper map? Are there utility easements that connect with the property: You’d be amazed what that last 5’ for a connecting utility easement might cost when sold by a friendly neighbor.
Knowing what easements you need as a buyer and knowing what easements are trouble in the waiting are good things. This knowledge helps you avoid future trouble, or at the very least lets you go forward with knowledge of the risks you are taking. You can’t avoid all risks, nor should you want to avoid all risks. But knowing in advance what the risks are and attempting to deal with and eliminate risks, if possible, makes good sense to this country lawyer.