SS148: What is an Easement in Real Estate

SS148: What is an Easement in Real Estate

When a property is sold, a title search is performed. If that title search uncovers an easement, it might delay the sale. In this episode, Charles discusses what an easement is, and how it affects a property owner’s rights.

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Talking Points:

·        An easement in real estate is a legal situation where the title to a specific property remains with the landowner however, another entity or individual is given the right to use the land for a specific purpose.

·        Easements may be official or unofficial and may begin with an agreement or simply develop as time goes on.

·        Official Easements:

o   Official easements happen when a past owner of a property, has agreed to an easement, or you as the current property owner granted an official easement. There is usually public record documentation that shows that the easement exists. A title search should discover these official easements. If a competent real estate attorney handled the easement, the specific rights to access, transit or use will be well defined.

o   An example of an official easement would be an Easement in Gross. This is common with utility companies who hold easements in gross to build and maintain utility lines on, under, or near an individual’s private property; also referred to as a utility easement.

§  Other easements would include;

§  Easements by necessity; an easement that’s protected by an obvious need. A property needs an easement to access a main road via private property.

§  Private easements. When land use is given to specific people for a dedicated purpose. An example would be allowing a neighbor to hunt on your property.

§  Public easements. When property access is granted for the general public’s use. An example would be using a path to a public beach that crosses private property.

·        Unofficial Easements:

o   Not every easement is supported by official documentation. Unofficial easements develop over time when one party uses the property of others, and the rightful property owners do not contest it. This is called a prescriptive easement. What once would have been considered a case of trespassing is now considered an easement by prescription. This occurs when a person continuously uses another’s land for an extended period of time as if they had an easement. There are several factors and criteria that need to be met, and the use and specific period of time varies by state law. For example: in Florida when one owner has openly used and possessed another’s land for 20 years it creates an easement by prescription. So if your neighbor has been openly parking his boat trailer on your property for 20+ years this would create a prescriptive easement.

·        If you are trying to purchase or sell a property, it is important to be aware of any past easements; whether official or unofficial. A title search will be required in most cases, especially if your property will be covered by title insurance.

·        The Importance of Working with a Real Estate Attorney to Correct any Easement Issues

o   If you are purchasing a property that has an easement or you have received a request for an easement, you should hire a real estate attorney because if you refuse to grant the easement, the other party might take you to court.

o   The attorney will assist you with negotiating the right value for the easement being granted to another party.

o   If the situation escalates to litigation; you will want an attorney to represent you against the other individual, corporation, or government entity.

o   Finally, if after granting the easement, the value of y our real property decreases, you will want your attorney to appeal your property’s taxable value.

Transcript:

Charles:
Welcome to Strategy Saturday; I’m Charles Carillo and today we’re going to be discussing what is an easement in real estate.

Charles:
Have you always wanted to invest in real estate, but didn’t have the time, didn’t know where to find the deals, couldn’t get the funding and didn’t want tenants calling you. Since 2006, I’ve been buying income producing properties and great locations that provide us with consistent passive income. While we wait for appreciation in the future and take advantage of tax laws while we’re waiting and unlike your financial advisor, we invest alongside our investors in every property we purchase. Check out to investwithharborside.com. If you like the idea of investing real estate, if you like the idea of passive income partner with us at investwithharborside.com, that’s investwithharborside.com.

Charles:
An easement in real estate is a legal situation where the title to a specific property remains with a landowner.

Charles:
However, another entity or individual is given the right to use the land for a specific purpose. Easements may be official or unofficial and may begin with an agreement or simply develop as time goes on. Official easements happen when a past owner of a property has agreed to an easement, or you as the current property owner, granted an official easement. There’s usually public record documentation that shows that the easement exists. A title search should discover these official easements. If a commandant real estate attorney handled the easement, these specific rights to access transit or use will be well-defined. Now, an example of an official easement would be an easement eng gross. And this is common with utility companies who hold easements eng gross to build and maintain utility lines on under or near an individual’s private property, also referred to as a utility easement. Now, other easements would include easements by necessity.

Charles:
So in an easement that’s protected by an obvious need, a property needs an easement to access a main road via private property, private easements when land is given to a specific person for a dedicated purpose. An example would be allowing a neighbor to hunt on your property. Public easements would be when property access is granted for the general public’s use. An example would be a path to a public beach that crosses private property. Now, unofficial easements, because not every easement is supported by official documentation. Unofficial easements develop over time. When one party uses the property of others and the rifle property owners do not contest it. This is called a prescriptive easement. What once would’ve been considered a case of trespassing is now considered an easement by prescription. This occurs when a person continuously uses another’s land for an extended period of time as if they had an official easement.

Charles:
There are several factors and criteria that need to be met, and the use and specific period of time varies by state law. For example, here in Florida, when one owner has openly used and possessed another’s land for 20 years, it creates an easement by prescription. So if your neighbor has been openly parking his boat trailer on your property for 20 plus years, this would create a prescriptive easement. If you’re trying to purchase or sell a property, it’s important to be aware of any past easements, whether official or unofficial. A title search will be required in most cases, especially if your property will be covered by title insurance. Now the importance of working with a real estate attorney to correct any easement issues. If you’re purchasing a property that has an easement or you have received a request for an easement, you should hire a real estate attorney because if you refuse to grant the easement, the other party might take you to court.

Charles:
The attorney will assist you with negotiating the right value for the easement being granted to you, uh, granted to the other party. If the situation escalates to litigation, you’ll want an attorney to represent you against the other individual corporation or government entity. And finally, if you’re granting the easement, the value of your real property will de decrease, and you want your attorney to appeal your property’s new taxable value. So I hope you enjoy. Please remember to rate, review, subscribe, submit comments and potential show [email protected]. If you’re interested in actively investing in real estate, please check out our courses and mentoring [email protected]. That is syndication superstars.com. Look forward to two more episodes next week. See you then.

Announcer:
Nothing in this episode should be considered specific, personal or professional advice. Any investment opportunities mentioned on this podcast are limited to accredited investors. Any investments will only be made with proper disclosure, subscription documentation, and are subject to all applicable laws. Please consult an appropriate tax legal, real estate, financial or business professional for individualized advice. Opinions of guests are their own information is not guaranteed. All investment strategies have the potential for profit or loss. The host is operating on behalf of Syndication Superstar, LLC, exclusively.

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