Don’t be startled to discover that you must ?share? part of your land.
In certain types of real estate transactions, it?s not until the middle of the deal that home buyers realize the land they?re purchasing with their home is not 100 percent theirs. They are startled to discover that they must allow their neighbors to ?share? part of their land, or that the local utility company has a right to access a pipe buried in their back yard.
How can this be? In both examples, the properties have what?s known as an ?easement,? otherwise known as a ?right-of-way.? This easement grants other designated people the right to specific types of access. Easements can be granted to another person, such as a neighbor, or to an entity, such as an electric and gas utility.
A property easement is generally written and recorded with the local assessor?s office. The documented easement will show up when a title search is conducted and it stays there indefinitely, unless both parties agree to remove it.
Without getting too deep into legal details, here are the types of easements worth knowing about.
1. Right-of-way through your property
As a homeowner, you would probably assume that you?re purchasing the land around your home, front yard, back yard and driveway. But that?s not always the case. Often, when you review the preliminary title report, you may discover that someone actually has a right-of-way through your property.
This is common in the case of a long driveway or a home that may be set back from the street. It could have been that in order for a neighboring home to have been built, that property?s owner negotiated with a previous owner to gain a right-of-way through the front of the parcel or driveway for the home you are buying.
In this scenario, you own the land, but the owner of the neighboring property has been granted right to pass through your property. In some instances, the previous owner might have been compensated for granting this access. The important thing to know is that easement carries over when a new owner assumes the property.
2. Right-of-way grant
If you?re the homeowner who needs access to a neighboring property, or you discover that the driveway or walkway to your home is actually not 100 percent yours, there?s usually nothing you need to do. It?s just important to be aware of these conditions, and that this is not entirely your land.
Depending on the size of the easement and the type of land it covers, there may be some issues regarding maintenance. For example, it may be your responsibility to keep up the land: Mowing the lawn, shoveling the pathway or maintaining a fence. If there?s a maintenance ambiguity, check with the current seller to understand how she and the other owner worked this out in the past. Many times an easement like this, known as a ?Right-of-Way Grant,? has been on title through the course of three or four owners, making the original intentions or understandings not explicit. Understanding how the easement has worked in most recent practice is your best course of action.
3. Other types of easements
Anyone who lives in a condominium or some type of planned development likely spends many hours working on property they don?t own outright but have access to. Most likely, the condo or planned development?s homeowners association (HOA) actually owns those areas, but each resident or owner has a right to pass through, which is one obvious type of easement.
But some easements aren?t so obvious and take buyers and homeowners by surprise. A classic example is one in which a utility company, such as an electric and power company or a telephone company, has an easement through your land for the purpose of maintaining the utility.
There was a situation near San Jose, CA, in which the electric and gas utility had an easement through someone?s backyard. It had been on title for many years, but the existing owners didn?t know about it. One day, the electric company showed up with digging machines and materials and made a mess of the yard digging to fix a faulty line. Though the owners were shocked, there was nothing they could do.
Situations like these show why it pays to be cautious if an easement shows up in a property title search. Ask the title company, attorney or your real estate agent to retain all documents pertaining to the original easement in order to review the details. That way, you will know the exact location of the easement, its size and scope and how it?s to be utilized.
Often, there?s not a problem with easements, but it?s still important to check. Any potential red flags might wind up affecting the value of your home.
In the case of the house in San Jose, for instance, what if the utility company had done permanent damage? What would be the homeowner?s recourse, if any? It?s best to vet these things before closing, rather than facing a serious real estate dilemma down the road.