Many properties have easements, often laid out when the subdivision was created. These easements may be for public utility or power lines, phone lines, water pipes, sewers pipes, gas lines and often cable TV. There are three common types of easements.
1. Easement in gross
In this type of easement, only property is involved, and the rights of other owners are not considered. For example, a public utility line easement would be an easement in gross and would be recorded in the public records.
If for any reason the title insurer fails to disclose a properly recorded easement in gross, and which then causes a problem later, then the title insurer must either pay you the diminished value of your property, or have the easement moved.
2. Easement appurtenant
An example of an easement appurtenant would be an easement allowing you to drive over your neighbor’s property to in order to reach your property.
An easement by necessity can be created for a landlocked parcel that has no public road access. To create an easement appurtenant by necessity, the owner of the landlocked parcel must be able to prove in court that there was common ownership with one of the joining parcels that has public access.
3. Prescriptive Easement
A prescriptive easement arises if someone uses part of your property without your permission. A prescriptive easement involves only the loss of use of part of a property, for example a pathway or driveway. Payment of property taxes is not required, as it is to obtain title by adverse possession. Adverse possession of a prescriptive easement involves the loss of an entire property by open, notorious, hostile adverse and continuous use.
The legal test to acquire a prescriptive easement of another owner is that the use must be (a) open, not secret, (b) notorious, clearly observable, (c) hostile, without the landowner’s consent and (c) continuous, without interruption for the number of years required by state law. For example, the minimum hostile use varies from 5 years in California to 30 years in Texas.
The most common prescriptive easement arises when a fence is erected several feet on the wrong side of a boundary line. If the hostile user meets all the requirements, after the required number of years, a permanent prescriptive easement results for the strip of land. Prescriptive easements can be shared, that is, the hostile use need not be exclusive. Use can be shared with the legal owner and/or other hostile prescriptive claimants.
To perfect a legal prescriptive easement, the hostile user must bring a quiet title lawsuit against the property owner and prove all the open, notorious, hostile and continuous use requirements.
If, after purchasing your property, you suspect that a neighbor is using land with belongs to you, that person or neighbor being a “hostile user”, you can choose to grant permission to your neighbor thus preventing a permanent prescriptive easement from arising. Permission should be documented such as by a letter to the hostile user.
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