Easements and you

A property owner recently contacted us because he came home to find trees missing from his property. Further investigation revealed that the trees in question had been removed from an easement that had been granted to an adjoining property. That easement was to provide access to an adjoining parcel and because the trees were an impediment to that access, they were removed.

If you own property you no doubt have easements. Whomever provides the power to your property likely has an easement to maintain that power and perform whatever work is necessary to keep that power flowing to you and others that depend upon that transmission line. The same goes for sewer, water and natural gas lines. If you live on a street, that street was probably built by easement and that easement probably extends beyond the curb and under the grass you mow near the street. The same is true for nearly all roadways, easements allowed them to be there.

Easements are granted, not only for utilities but, as in the case above, for access. When you purchase a property, these easements will be noted in your title insurance policy as long as they have been properly recorded. If you are interested in a property, or have owned one for some time and are curious about easements, you can always check with the Recorder's office in the county where you reside to see what easements exist.

Easements by deed are the most common. These easements will describe their location and are a legal interest in the real estate they cross. Legal statutes require these easements be created in writing. Sometimes easements are created for a specific use at a specific point in time and are negotiated with the property owner. Although a landowner may negotiate a reasonable price for an easement across their property the law may provide eminent domain to a public entity to obtain the needed access from an uncooperative landowner.

An implied easement may exist if a larger parcel with access across it is sub-divided. If a parcel closer to the main public road is retained by the seller and a parcel behind it is sold, the buyer has an easement by implication as it is implied from a prior use. When a property owner has continually used access across the property, that access does not cease because the seller no longer needs it, since it is reasonably necessary for the enjoyment of the other. Even when neither party agrees in writing, this easement exists.

An easement may also be created by prescription. This type of easement can be acquired through the "open and notorious" use of another's land for access without permission for a period of time. The use must have been continuous and uninterrupted with the actual or imputed knowledge of the owner of the property burdened by the easement and use has continued for five years or more. This doesn't apply only to roads but may apply to a path across your property used by your neighbors to access a lake, a park, forest or the local convenience store.

Of course the easements that are most common are all made apparent in the title insurance policy or found in the recorder's office. The trouble is, like our friend in the introduction of this piece, we forget. Then we come home one day to find trees cut down.

Always know what you are buying before you get too deep into the process. Your Realtor will help you find the easements that affect the property in which you are interested. Title insurance will make sure you are protected.

Trust an expert...call a Realtor. Call your Realtor or visit www.cdarealtors.com to search properties on the Multiple Listing Service or to find a Realtor member who will represent your best interests.

Kim Cooper is a real estate broker and the spokesman for the Coeur d'Alene Association of Realtors. Kim and the association invite your feedback and input for this column. You may contact them by writing to the Coeur d'Alene Association of Realtors, 409 W. Neider, Coeur d'Alene, ID 83815 or by calling (208) 667-0664.