When you purchase a new home, part of the research into the property’s history and chain of title will most likely include a property survey, which helps determine the actual property lines associated with your new piece of real estate. During that process, you may learn more about “easements” and “encroachments.” Both terms refer to use of your property by someone else, but they are very different.
Interested in learning more about easements and encroachments, and the key differences between them? Let’s dig in:
Encroachments Are Non-Permitted Intrusions Onto Land Or Property
Encroachments are intrusions onto the land or property of another. The most common form of encroachment occurs when a neighbor unintentionally builds a structure on or overhanging your property line. Most encroachments are unintentional – a fence built a few feet over the property line, a structure on the property that doesn’t quite conform to the property lines as designated, or a large tree or roof hanging out over your property are all common examples.
The most important legal feature of an encroachment is that it is not permitted. Whether by mistake or intentional act, an encroaching structure is a structure that is on your property without your consent. Even if an encroachment doesn’t bother you, it can create headaches in ensuring a clear title for purposes of title insurance, and it can even impact your homeowner’s insurance policy if someone is injured on or by an encroaching item.
There are several commonly recognized types of encroachments:
Minor Encroachment
A minor encroachment is a small, non-permanent intrusion across the property line. A flower bed, lawn, or other shrub or small tree that has grown over the property line would be considered a minor encroachment. Such encroachments rarely create issues, and if they do, these issues can generally be quickly resolved.
Major Encroachment
A major encroachment is an encroachment that causes a red flag in a property survey. An example might be a large tree branch that overhangs a neighboring property and could cause a liability issue for a homeowner if it were to fall.
Structural Encroachment
A structural encroachment is a structure that is built either all or in part on your property. A structural encroachment might include a garage that crosses a confusing property line, a fence unintentionally built a few feet from the property boundary, or even an upper level of a home that extends beyond a neighbor’s property line.
For some minor encroachments, a simple conversation between neighbors may be sufficient to resolve any issues. Fences may be moved or trees trimmed to remove the offending portions. For structural encroachments that are difficult to move, homeowners have a few options. They can sell part of the property to the neighbor, or file a lawsuit to force a structure to be moved.
Broadly speaking, it is always in your best interest to address any large structural encroachments right away, as under some circumstances, a structural encroachment left long enough can transform into a prescriptive or equitable easement – which can deprive you of the right to enjoy all of your property and force you to live with the structure forever.
Easements Are Permitted Intrusions Or Limits Of A Homeowner’s Rights
An easement is someone else’s right to a non-possessory interest in your property. Common examples include a utility company’s right to enter your property to perform maintenance, or a landlocked neighbor’s right to drive across part of your property in order to access a public road.
Easements are usually, but not always, documented in writing and the rules for use of an easement are laid out in explicit terms. They generally transfer along with the title to the home, and place some limitation on the “bundle of rights” that you receive when you take title to your new home.
There are two major kinds of easements: easements appurtenant, and easements in gross.
Easements Appurtenant
An easement appurtenant is owned by a parcel of land. An easement in which the residents of a landlocked property have the right to drive across your land to access a road is an easement appurtenant. Because the easement travels with the land, if your neighbors sell their property to a new owner, the new owner enjoys the right to the same roadway access.
Easements In Gross
Easements in gross, by contrast, are held by a company or person without regard to their property ownership. A common example of an easement in gross is a utility company’s maintenance easement, or a private arrangement in which one party purchases the right to use part of another’s land for some specific purpose, such as accessing a beach or placing a billboard. An easement in gross is defined by the terms of the agreement between the two parties, and does not depend on the user’s ownership of a particular parcel.
How Are Easements Created?
Easements can be created in one of four main ways:
Express Easement
An express easement is the most common form of easement. An express easement is a written contract that outlines the terms by which the easement is granted, how and when it can be terminated, and the expectations of both parties involved. Express easements are generally recorded and can be reviewed in a title search.
Implied Easement
Unlike an expressed easement, an implied easement is neither written down nor documented, but rather created by circumstances. An implied easement is typically created by the subdivision of a larger piece of property into smaller parcels where some of the parcels can access a main road and others cannot. In this case, an implied easement is created whereby the landlocked parcels can cross over parcels with road access.
Easement By Necessity
An easement by necessity is similar to an implied easement. It’s usually created when the only reasonable and practical access to the property requires crossing someone else’s land, but the parties cannot agree to create an express or implied easement. If, in the future, access becomes possible through a new road or other means, the easement can be terminated.
Prescriptive Easement
A prescriptive easement is a complex legal creation whereby, in certain limited circumstances, an easement can be created by open and continuous possession of a part of another’s land. For example, if a neighbor builds a structure very clearly over the property line, and the structure is allowed to stand for a period of time prescribed by law, a court may grant a prescriptive easement for the structure. A court may also, in such cases, create an “equitable easement,” essentially finding that it would not be fair to force one party to tear down part or all of a structure. These easements are very rare, and courts generally go out of their way to avoid creating them, but they can create issues in a land survey or title search.
Learn More With Your Trusted Title Company
Buying or selling a home is complicated, and sometimes it seems like you need to learn a whole new vocabulary just to protect yourself! But you don’t have to navigate the ins and outs of title searches or owner’s and lender’s title insurance policies alone.
If you have questions about what title insurance can do to protect you, what it involves, or how to get it, Landtrust Title Services can help.
Landtrust Title was established to fulfill the growing need for partnerships that provide higher service standards and growth opportunities in the title insurance and escrow services industry. At Landtrust, we’re different. We’re customer-obsessed and strive to focus on what you need from start to finish. We strive to deliver service excellence for every real estate transaction. Contact us today at [email protected] or by phone at 312.528.9210 to get answers to all of your questions.