You're in the process of buying a house, and it's perfect in every way. There's even a place in the yard for your dream workshop.
As you're reviewing the Seller Property Disclosure Statement, you find that the Seller says there's an easement on the property, right where you want to put the workshop.
What is an easement, and how and when does it affect your right to use your property? Can you still build the workshop?
Simply stated, an easement is someone else's right to use your land for a specific purpose. Easements also restrict the owner's usage of their own land.
By definition, an easement is "a property right that gives its holder a nonpossessory interest in another person's land."
But this doesn't mean your neighbor can come over and build a basketball court on your property, or kick you out of your house. An easement allows the non-owner to cross or otherwise use someone else's land for a specified purpose, usually related to access.
Common easements are those for utilities, where strips of a property are designated for overhead and underground utilities like electrical, gas, cable, and sewer lines.
Utility easements are a great example of an instance when the land owner can be restricted in their use of the property.
If you have a utility easement, you may not be able to build structures, plant trees, or restrict access to the section of the property where the easement lies. For instance, gating off an entire property that has an easement for a gas line may be prohibited because it interferes with the gas company's ability to inspect and maintain the line.
Other common easements are those for access.
Take two adjacent parcels of land. One is next to a public road, but the only way to access the other parcel is by crossing the first. The owner of the landlocked parcel probably has an easement across his neighbor's lot - specifically, the right to cross his neighbor's land in a specified area in order to reach his property.
How do you know if there are easements on your property? Any easements that have been recorded will show up in the public record and are easily searched on the County Assessor's website. Recorded easements will also show up on the title commitment provided by the title company during the purchase process, so they're easy for a Buyer to investigate.
An unrecorded easement is trickier and can be created without the knowledge or intent of either the property owner or the holder of the easement right.
Using the example of the landlocked parcel, if the owner of the landlocked parcel has crossed his neighbor's property, openly and without interruption for at least 10 years (under Arizona law), he may have a prescriptive easement on his neighbor's land, a legally binding right regardless of whether or not it has been recorded.
The best way to investigate the presence of easements when buying property is to carefully review the Seller Property Disclosure Statement, title commitment, and affidavit of disclosure. Asking questions of the Seller, walking the property and talking to neighbors may help reveal any unrecorded prescriptive easements.
Going back to the question of your new workshop: You're going to need to find another place for it. Building a structure on the easement would infringe on the property rights of the easement holder.
Because easements can be complicated, we recommend consulting with an attorney who specializes in real estate law if they are at issue on a property you are considering purchasing.