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Eminent Domain and Easements

An easement gives a person, government or company the right to access or use someone else’s land for a specific purpose. It doesn’t grant a share of ownership. How an easement holder can use the property depends on the type of easement.

Two types of easements are affirmative easements and negative easements. An affirmative easement allows for the right to do something on the grantor of the easement’s land, such as travel on a path or road through it. A negative easement allows the easement holder to prevent the grantor from doing something on their land, such as building a structure that obscures a view.

Eminent domain refers to the power of a government to take private property and convert it into public use, provided it compensates property owners fairly. The most common examples of an easement from eminent domain cases include allowances for sewer lines, water lines, telephone and cable and electric lines that cross private property.

How Does an Easement Work?

You can create easements in various ways, including through an express grant, by implication, necessity and adverse possession. They’re transferrable and transfer along with the land.

Easements can affect ownership and limit your ability to do certain things on your property. They may exist between private landowners. However, governments can also grant the right of eminent domain to themselves or to private companies. In the case of a power line, an easement held by the power company may prevent you from growing trees on the easement.

A title search should show any easements on a piece of land, though not all easements get recorded properly. Sometimes they exist only when there’s a circumstantial need for them. To find documentation of an easement, check city or county land records, utility companies and property surveys.

Types of Easements

Easements come in various forms, but the three main types of easements that homeowners are likely to encounter are called appurtenant, gross and prescriptive.

Types of easements include:
  • Easement Appurtenant: Accompanies the property, regardless of owner. It may involve neighboring properties and a situation in which one is allowed access to another. An example is an easement on a beachfront property that allows the public access the beach.
  • Easement by Necessity: An easement appurtenant created by law, not by agreement between neighbors. It covers a scenario in which two people own separate parcels of land that adjoin each other so that one is landlocked. The law creates an easement for access to and from the property that is cut off.
  • Easements in Gross: Allow for grants to a specific entity, such as utility easements. Often they’re established before residents buy into a new subdivision. They’re linked to an individual or company rather than the property.
  • Prescriptive Easements: Acquired by repeated use without permission of the property owner. The number of years of use that it takes to establish a prescriptive easement varies by state. An example is an open path used by the public for years but which the owner did nothing to prevent.
  • Utility Easements: Designated parcels of land that give utility companies the right to access private property for the good of the community.
  • Private Easements: Agreements for access to property restricted to a certain number of people and are for the benefit of the grantor and grantee and their successors and assigns only. They should be formalized with maps and documentation.

As a property owner, check for any easements on your property and understand your rights under the law. Most easements won’t affect your property rights, but they may impact your ability to build or add some features to your property, such as a swimming pool.

What Is a Right of Way?

A right of way is a type of easement. A public right-of-way allows anyone to pass through a portion of property as though it was public land. A private right of way allows someone specific, such as a neighbor, to pass and re-pass by foot or vehicle across land owned by someone else.

Landowners entering an informal right-of-way arrangement often think there’s a mutual understanding of how the right-of-way can be used. The reality is each party’s understanding may differ.

For this reason, consider formalizing any right-of-way by through a deed or document, something that specifies the easement’s purpose and the parts of the property subject to it.

What Is a Restrictive Covenant?

A restrictive covenant is a promise included in a legal agreement that prevents one party to the contract from taking a specific action.

In the context of property, a restrictive covenant is a covenant acknowledged in a real property conveyance or lease that restricts the free use or occupancy of the property. Beneficiaries of the covenant obtain rights from it and have the right to sue if you breach it.

Common examples of a restrictive covenant include restrictions of exterior coverings or maintenance of a home by a homeowners association.

Are Permanent Easements a Problem?

Some easements, such as agricultural or conservation easements that limit land use, are permanent. Companies seeking to run pipelines or power lines across a landowner’s property may seek a permanent easement for the relevant portion of the property.

Permanent easements also apply to a government body acquiring the right to use a portion of your property for the public good under eminent domain. Examples of a permanent easement include those for utilities, drainage and slope.

At the core of eminent domain is the issue of fair compensation for the use of the property. Signing a contract and accepting compensation makes it difficult to fight eminent domain cases or change the agreement later.

Granting a permanent easement may trigger tax consequences. For these reasons, seek legal ’counsel when faced with an eminent domain case.

Please seek the advice of a qualified professional before making decisions about your health or finances.
Last Modified: March 30, 2023

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