PHOTO: NPS CulturalLandscape/Flickr
Lisa Kivirist
September 28, 2016

Q:

I’m looking at a property with an existing easement related to driveway access. What does this mean and how could it affect me?

A:

By definition, an “easement” is the legal right to use land that someone else owns. Specifics on the easement are typically written into the property deed and automatically transfer when a property is sold.

“Easements are different than a lease or a license to use the land because they are permanent and are connected to the land, not the people who own the land,” explains Rachel Armstrong, executive director of Farm Commons (www.farmcommons.org), a nonprofit that offers legal services and education to farmers in the sustainable-agriculture community. “When you purchase a property, you cannot buy only the property and leave the easement. You can potentially renegotiate the easement, but that is a separate process that may happen after the sale closes and you are the decision-making owner of the property.”

Two common easements are driveway and utility easements. A driveway easement means someone has the right to drive across land to access their own. For example, Farmer Bob owns the land and he gives Farmer Jill a driveway easement across his land so she can access hers. A utility easement gives the utility company the right to erect and maintain a power, telephone or cable line across the property.

“A person considering buying land should look closely at any easements because they come with the purchase and the purchaser cannot expect changes,” Armstrong says. “As the prospective buyer, you are responsible for looking into exactly where the easement is located and for what purpose.”

You can find a copy of the deed at your county’s Register of Deeds office. To make sure you understand the situation, ask questions about the easement from multiple sources, including the seller of the property, the person granted easement access, other neighbors, your real estate agent and the person working at the Register of Deeds. Understand who has access and when, as well as related issues, such as upkeep. In the case of a driveway easement, you need to determine who is responsible for driveway maintenance: Bob or Jill.

In addition to formally written easements, unwritten easements might also legally transfer with the property. “It is wise to see if someone regularly uses the land you are considering purchasing, as this person may have legal rights to continue to access the property after the sale if such a precedent has been set,” Armstrong says. For instance, if a neighboring farmer has accessed his field using another property owner’s driveway for years, that relationship could still be legally honored after the sale. This is because easements transfer to the new owner along with the land, even though the easement might have been created through the previous owner’s behavior alone, adds Armstrong. Easement rules also vary by state, so be sure to get information specific to where you plan to move.

My friends, Daisy and John Peterson, purchased land to build their hobby farm. Accessing their land required crossing another farmer’s property, so this was written into a formal easement.

“As in our case, easements can be very beneficial and communicate specific expectations to everyone involved, but remember situations naturally evolve over time, and it is important to prioritize strong relationships with your neighbors above all,” Daisy Peterson says. “Our easement states that the owner of the property we access is responsible for keeping the entrance of the driveway clear. This worked well for years, but today that owner no longer lives on the property and we just clear this area ourselves when it snows. We’re clearing the rest of the driveway anyway, so it isn’t a big deal and not worth hassling our neighbor over.”

Easements are quite common in rural areas and should not necessarily be a deterrent in purchasing a property, but it’s your responsibility to fully understand the easement specifics.
For more farmer legal resources, visit the Farm Commons website (www.farmcommons.org).

This article originally appeared in the September/October 2016 issue of Hobby Farms.


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