An easement is an interest in property that allows another person the legal right to use or own parts of the property owner’s land for a specific purpose. Essentially, it gives the someone the right to trespass on your land as long as it follows the easements restrictions. Understanding how easements may affect your commercial property and the value of the property can prevent major issues down the road for the landowner.
Typically, an easement is created for specific purposes and can be given to anyone, including neighbors, government agencies or private parties. Because easements concern real property, they are governed by real property law. When acquiring commercial real estate, it is important to conduct due diligence to ensure there are no surprises that will affect the value or use of the commercial property. An aspect of this due diligence process is obtaining a Boundary Survey. During the process of preparing a Boundary Survey, the surveyor works in unison with the purchaser’s attorney and title company to ensure that exceptions (easements, access, zoning, etc.) listed in the title policy are accurately plotted on the survey drawing. The following are various types of property easements to consider:
Utility Easement – A utility easement is a common type that allows the local utility companies the right to use parts of the land. These easements are necessary for the existence of electricity, telephone, television, water, and sewer systems on the property. Typically, there are already existing utility easements on a property at the time of purchase. Utility easements generally will not affect the value of a commercial property unless it imposes tight restrictions on what the property owner may and may not do.
Public Easement – In some areas, the general public has the right to use certain areas, streets, and paths. In these cases, a public easement would give the public the right to use a part of the property. This may be the case in the event of protected land, such as a reservation or park. Public easements often come into play when the government dedicates certain areas of land for public use.
Private Easement – A private easement is one the property owner sells to another individual. Prior to purchasing the property, it is important to inspect any private easements listed on the title. Review copies of the actual easement documents to learn where they are and what uses/restrictions they require. Private easements may limit what you can build or install on your commercial property based on the terms.
Easement by Necessity – Sometimes easements are unavoidable. In situations where access to a piece of land must go through your commercial property, an easement by necessity may come into existence. The property owner does not have the right to stop these easements, as this would encroach on the neighbor’s legal rights. Where land gets divided, easements by necessity occur the most often.
Easement by Prior Use – Occasionally, previous landowners have easements from divided pieces of property but forget to include them on titles and deeds. If a landowner forgets to include an easement in the deed, they must prove the existence of the easement by prior use. To establish this type of easement, the commercial property owner needs to show common ownership of two properties at one time, a severance of the properties, easements before and after the severance, notice of the easement, and that the easement is necessary.
At Stoner & Associates, we are experts in the area of boundary surveys, surveys specifications and various easements. Most importantly, we know that you need your survey to be completed on time for the closing date. We work hard to be part of your team and to answer any and all questions pertaining to various easements, the survey, certifications, and title commitments.
For more information regarding the ALTA / ACSM land title surveying services offered by Stoner & Associates, please call us at (954) 585-0997 or request a quote.
