The Gross Truth About Easements in Gross
As an active Realtor in Southwest Ohio, I come across situations involving easements in gross and other types of easements that can sometimes negatively impact a real estate transaction and also stories from new clients about easements causing issues in their past.
My business partner, Greg Hancock, and I are always seeking to educate buyers and sellers; easements in gross or easements period should always be looked for, evaluated and discussed.
Not doing so is like building without a permit and can come back and "bite you" down the road. I even have a personal story and example for you of how this can happen.
Easements can be defined or classified as easements in gross or easements appurtenant.
The types of easements that concern buyers and homeowners are easements in gross and easements by prescription. Let's start with the definition of "easements in gross".
Understanding Easements in Gross
An easement in gross is simply the legal right to use another person's land for as long as the owner owns that land or the holder of the easement dies.
An easement in gross benefits a person or entity, rather than the parcel of land. When a property is sold to a new owner, the easement typically transfers with the property. The holder of the easement in gross, however, has rights to the easement but prohibited from transferring the easement to some other individual or company.
Utility companies commonly have easements in gross on property so they can access utility lines, sewer pipes, cables and other physical components. In most cases, the easements dictate what sort of activity can occur (i.e., only for driving, not building). This is also the source of some easement horror stories and examples I’m going to share further down.
Title abstracts run by the title company to make sure the title is free clear of defects help to catch easements. Easements, however should always be disclosed by the seller, but the responsibility to discover falls to the buyer.
Another example of an easement would be a shared driveway, one property yielding the right to another for use of a driveway. A fishing pond on your property may have an easement by prescription for an adjacent neighbor who's been fishing there for years unchallenged. This would be an example of easement by prescription, defined below.
Understanding Easement by Prescription
Some easements are called prescriptive easements or more commonly; easements by prescription. This type of easement can arise when an individual has used some part of the property as if an easement existed and in a certain way for a certain number of years. In most states, a prescriptive easement is created if the individual's use of the property meets the following requirements:
- The use is open and notorious, i.e. obvious and not secretive.
- The individual actually uses the property.
- The use is continuous for the statutory period - typically between 5 and 30 years.
- The use is adverse to the true owner, i.e. without the owner's permission.
A Horror Story of an Easement in Gross
Property easements can have a major effect on your property and its uses as well as their restrictions. When buying a home, it is very important to check and understand any easements that might exist and what effect they might have on the property.
My business partner, Greg Hancock and I have been helping other people with all of their real estate needs for over a decade and have seldom encountered any serious issues with property easements until recently. This time, and easement caused an issue that surfaced on our own turf, literally!
Hopefully, our personal story will help shed some light on the mostly non-discussed issue surrounding easements and save other people a lot of grief and heartache.
I have attended countless educational classes in my real estate career and, though referenced, utility easements (easements in gross) were defined, but classes haven't addressed how they could affect a homeowner’s rights, etc. It can be said at times that experience is the better teacher.
My business partner and I co-own a home in Monroe and our property contains nearly ¾ of an acre of land. Our lot is irregular and sort of triangular in shape. Our home sits along the backside of the triangle and at the front of our view are five 2-story duplex homes with several very large high-power electrical power lines in between.
Unfortunately, approximately 65 - 70% of our property is covered with easement rights that are owned by DUKE Energy and it severely limits what we can or cannot do with the land.
Apparently we are better off than some of our neighbors in the subdivision next door. Some of those residents are contending with the easement that is literally 1 foot in front of their homes. (shame on the developers)!
Some of the local residents have lost dozens of trees, fences, sheds and in a few cases, in-ground swimming pools. Basically, anything that is within the easement stretching across our land is subject to demolition and removal. DUKE is offering compensation for some of the things being removed, but not everything.
We knew the easements existed, but we weren’t completely aware of their vast and expansive coverage across our land. The power lines were installed across the land before our home was even built. The tress and foliage have been growing for years, untouched and seemingly not an issue, until now.
One of the main reasons that we bought our home where it is in the first place was because of the large lot and our ability to maintain our privacy along with the help of mother nature. Long before we arrived on the scene, there were several large trees and bushes blocking most of our view of the duplexes in front and we kept adding to the privacy screen with plantings of our own.
Fortunately, we don’t have any of the huge power line poles nearby and hopefully that doesn’t change. At least for now, we only have to contend with the power lines themselves.
We completely understand and recognize the need for electricity in every aspect of our lives and we realize that the electricity cannot be delivered to our homes and businesses without the use of the power lines and the poles to support said lines. We also realize that power lines must stretch thousands upon thousands of miles across the country will inconvenience hundreds and thousands of home owners and we’re simply small fish in a huge ocean, but it still sucks when the “issues” are right in your own front yard.
Hopefully the “personal” story that we are sharing with you will help you understand and recognize the importance of checking ALL easements that might exist on your property before; or if it is already too late, after your home purchase.
If you would like more information, I’ll be happy to email you the PDF’s that we have on hand that clearly spells out everything according to DUKE.
A Top Ohio Realtor 513 292 9374