Featured News 2013 Necessity, Permissive, and Prescriptive Easements

Necessity, Permissive, and Prescriptive Easements

There are two different types of easements that you may run into when you are purchasing property or that you may need to deal with as a property owner. An easement is an allowance that will give someone else access to or use of your property that is within your property lines. Easements are used for a number of reasons. For example, if a neighbor has to add extra piping under the ground to route to his or her home, then he or she may request an easement of your property. Also, the city may request an easement of your property to add a road or path for the community.

A necessity easement is an easement that the court determines is necessary in order to help a neighbor to enjoy and use their land. For example, if two homes are situated so that a neighbor must use part of the other property owner's driveway to access the home, then this would be considered a necessity easement. Normally the court will evaluate necessity easements and determine whether or not the easement should be required.

Laws say that if two parcels of land are situated so that an easement over one piece of property is necessary for the use and enjoyment of the other property, then the easement is necessary. Normally the court will want to see if both parcels of land were originally joined as one or were both owned by the same owner. If the owner then divided the land and parceled it out to two separate homeowners, it may create a situation that would require an easement. The court does not require that homeowners previously used the easement.

The most common type of necessity easement is one that is established because of a landlocked property. This happens when a homeowner can only gain access to a public road if he or she can travel over an adjoining parcel of land. Landlocked properties are almost always accidentally created. The city won't typically approve a homebuilding plan that involves landlocked property, unless the property owner already has possession of the surrounding plots of land. Most of the time the landowner forgets to include an easement or a method of access to reach the road before selling the home to an eager buyer.

The other type of easements that are common in real estate is a permissive easement. This is an easement that gives one homeowner permission to use the land of another for a specific purpose. Normally, the easement is treated like a license, and it is revocable at any time by the property owner. Permissive easements are typically agreed upon with a contract. The person requesting the easement is required to keep the stipulations of the contract or the easement can be revoked. Some landowners will erect signs that state the grant of the permissive easement after it is negotiated.

This helps to keep the easement from becoming a prescriptive one. A prescriptive easement is one that is created out of adverse possession of the property. This means that someone other than the original property owner gains possession of the property. Sometimes, this happens on rural land when a landowner doesn't realize that a neighbor is using the property.

Fences that are built in incorrect locations can sometimes lead to prescriptive easements, even if they are unintentional. The laws to obtain a prescriptive easement are often strict. The use of the land must be hostile, open, and continues for a specified number of years under the prescriptive easement. If you want more information about easements then you need to contact a real estate attorney near you today!

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