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Real Estate Agents: Understanding Easements and How to Minimize Liability

Easements are a non-possessory right to use land or a portion of property belonging to another person. Failing to recognize and educate clients as to the existence of any easements can curtail an otherwise routine real estate transaction and potentially lead to litigation.

An easement may exist in one of two forms: affirmative easement or negative easement.  Affirmative easements are more common and allow for specific or certain uses of land. Affirmative easements give the right to enter onto a specific portion of the land of another person for a specific purpose or activity, such as hunting, fishing, servicing of equipment, or driving down an access road (called a right of way).

Examples of affirmative easements include:

  • Utility easements  – overhead or underground power lines, cable lines, gas lines, or water mains which serve to allow utility companies to use portions of a property in order to supply utility services to the public
  • Drainage easements – allow one lot to drain its storm water onto another lot or into a common detention pond
  • Shared driveways – provide access to private properties from public ways, which may also provide for common maintenance and upkeep responsibilities as well as shared expenditures
  • Walking/bike paths & beach access – may benefit an abutting property owner as well as the public

Negative easements typically prohibit certain uses or activities on a property. A negative easement might allow one property owner to prevent their neighbor from building above a certain height that would block a view, or it might prevent a landowner from blocking a stream or source of water. An example of a negative easement is a Conservation Easement, which is created when the landowner grants an easement to a third party conservation organization – or even the government – that gives that organization the power to block the development of the land, so as to ensure that it remains in a comparatively natural state.

Affirmative or negative easements can exist or be created in several ways – by express grant, implication or prescriptive easement, i.e. adverse possession.

  1. Express Easements: These are easements that are created by written documents, such as a deed, separate easement agreement, court order, or some other written instrument.   Such easements may be evident on a plot plan, property survey, or recorded on the title or deed for the property.  Generally speaking, these easements should show up in a typical title search. If you represent a buyer purchasing a property, you should be prepared and informed to explain how the easement burdens their use and/or development of the property. Title searches, dating back to when the property was first built or subdivided, should be recommended to buyers in order to fully investigate the existence of any such easements and the extent of any burdens placed on property and successor landowners.
  2. Implied Easements:  An implied easement is not recorded, but exists where the circumstances show that an easement was intended to exist. These easements are created by prior use, necessity, plat or map, or by past court decision or order.  Such may be implied by the Court where one party holds land and then deeds, subdivides, or sells a portion of the land. The basic idea with implied easements is that when land is deeded out, the conveyance includes, by implication, that which is necessary to make good use of the land – i.e., the owner of the land must be able to legally access the land.  These types of easements will generally not show up on a title search. The existence or possibility that a Court might judicially create such an easement should be something which you, as the real estate agent, would be able to suspect or appreciate upon viewing the property and/or reviewing the plot plan, map or title search. For example, a dirt road running across the seller’s property and onto the neighboring property, which does not appear on a plat map or on a title search, should immediately raise red flags. Similarly, a conveyance which appears to land-lock a parcel of land merits further investigation in order to properly advise clients. Learn more about verbal easements and improvement location certificates (ILC).
  3. Prescriptive Easements:  Prescriptive easements are easements created by adverse possession. The idea is that a person or neighbor uses a portion of the land in an open, easily ascertainable and obvious manner, as if they were owners of that portion of the land for a specific statutory period of time. For example: a neighbor takes a shortcut and drives across the adjoining land every morning and every evening to save two minutes, such that they create a packed dirt track across a field and they do so in an adverse manner – that is without permission of the person whose land they are cutting across. If this is done for the prescribed time period, they may create an easement through their conduct. Anything that is visible from an inspection of the property, such as the dirt packed track or other such activity on the property, which was not created by the homeowner, should raise red flags and warrants further investigation.  Note that the time period before the easement is created varies from state to state – the time period in Massachusetts is 20 years, while Rhode Island has a 10 year time period.

While easements are often straightforward and within the understanding of the typical buyer, real estate agents should not assume that their clients appreciate the possibility of an existing easement and understand the implications of an easement. As a real estate agent, you may minimize liability by recognizing the potential existence of an easement, explaining it to the client, and recommending legal counsel and/or further investigation. Under the rule of Caveat Emptor — meaning “let the buyer beware” — the onus is on the buyer.  Your buyers must perform due diligence before making a purchase and take all necessary steps to learn about the existence of an easement. A buyer who learns of the existence and impact of an easement after the closing is a dissatisfied client and potential litigant. The existence of an easement can affect the value of property, use of property, and may even limit a buyer’s ability to renovate, build or expand the existing residential home on the property.

In the residential context, sellers are typically required to identify whether any other person or entity has a right to use the property, or part of it, in their Uniform Seller’s Property Disclosures. As the seller’s agent, you want to ensure the disclosure is consistent with your observations of the property and the real estate documents. As the seller’s agent, you may be exposed to potential liability if an easement is not disclosed to a buyer and you were aware or should have been aware of it.  Realtors should also document, whether by notes or through written correspondence, discussions with clients notifying them of the existence of an easement, a potential easement, or implications of an easement.  Document in writing  your recommendation to conduct further investigations and/or seek legal counsel in order to fully comprehend the issue.

About the Author
Luana DiSarra Scavone
Luana DiSarra Scavone
Litchfield Cavo, LLP

Luana focuses her practice on the evaluation, preparation, and trial of complex commercial litigation in Massachusetts and Rhode Island, including general liability, commercial liability, premise liability, professional liability, product defects, automobile torts, trucking liability, contract disputes, construction site accidents, discrimination claims, consumer protection violations, violations of the Fair Debt Collections and Credit Reporting Acts, and wrongful death actions. She has defended numerous insured private individuals, insured companies and self-insured corporations and has practiced in U.S. District Courts, Superior Courts, District Courts, the Commission Against Discrimination, Professional Licensing Boards, and Appeals Courts in Massachusetts and Rhode Island.

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