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What are easements and how are they used?

by | Jan 6, 2022 | Real Estate |

Many property owners have heard of easements but are not familiar with exactly what they are or do. If you are a property owner in New Jersey, it’s important to understand the most common types of easements, why they are used, and when an easement might affect your land and your use of it. Having represented a valued and diverse clientele in real estate transactions  for more than 36 years, the attorneys at Mariano & Coiro, P.C., can help you understand your rights and obligations regarding easements in New Jersey.

How are easements used?

In their simplest terms, easements are recorded agreements that allow someone other than the property owner to benefit from the use of that property in some way. This could be through an affirmative easement, whereby the beneficiary is allowed to use another’s land in some way, like driving on a neighbor’s driveway to access a landlocked property, for example. Alternatively, a negative easement can be used to prevent the property owner from taking a certain action, such as constructing a building over a particular portion of the property (such as a conservation or drainage easement).

The most common types of easements are utility easements, which benefit utility companies, enabling them to maintain and access their lines or pipes over or under your property. Almost all properties are burdened by utility easements. It is important to know exactly where such easements are on your property, as you may not disturb or build over any such easement areas. To do so would interfere with utility company access if and when needed. Other common easements may exist between neighboring properties, such as a “shared driveway” or “access easement” (i.e., allowing owner #1 to drive over owner #2’s land to access owner #1’s property.

In order for an easement to be effective and enforceable, it must be in writing AND recorded with the County Clerk. Doing so creates what is known as a “covenant that runs with the land”. This means that even when the property is sold, the easement continues, as it is formally and properly connected to the property(ies). A formal or informal agreement between parties which is NOT recorded becomes simply an agreement between those parties and does not run with the land. Hence it is unenforceable against any other parties in the future, such as new owners.

Other different easement scenarios

Property owners may use easements for many reasons, including:

  • Settling boundary disputes — A temporary easement can help resolve a situation where someone encroached on a neighbor’s land. For example, the person put up a fence, only to find out the fence is over the property line. Rather than going through expensive litigation or having the fence completely redone, the neighboring property owner could grant a temporary easement for a certain amount of time in exchange for compensation. However, this is rather rare, as most such cases are typically resolved by moving the fence or creating a proper easement as described above, permitting the encroachment.
  • Access easements — A common easement is one that grants one party access over another party’s land.  This typically occurs where one owner discovers that an adjoining owner’s driveway is partially or completely on his/her property. The easiest resolution is to put a proper access easement in place to avoid any future issues for either owner when selling their respective properties in the future.
  • Easement by estoppel or prescription — The above easements, if not resolved by amicable agreement between homeowners, may also result from litigation, whereby a Court imposes the easement as one of “necessity” against the property of an otherwise unwilling owner.

These are just a few examples of situations where property owners employ or pursue easements. Perhaps you discovered your property already has an easement on it. In that case, the New Jersey real estate attorneys at Mariano & Coiro, P.C. can review the language and explain to you how it affects your property. We also thoroughly review contracts for homebuyers and sellers throughout New Jersey.

Drafting and reviewing easements

An easement encumbering your property could have a major impact on your use and enjoyment of the property. Depending on the circumstances, an easement may also be the most viable solution to an existing problem. If you are considering an easement or have discovered an easement on your property, the experienced real estate attorneys at Mariano & Coiro, P.C., are here to answer your questions. You may call 800-800-9933 or send us an email to schedule a FREE and CONFIDENTIAL consultation with our trusted and experienced real estate team.

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