Easement is an integral part of New Jersey real estate law and often come as a surprise to home buyers who are unable to fully understand the property rights they are purchasing. Whether it’s an easement that prevents you from building a pool in your backyard or an easement that gives your neighbor the right to use your driveway for their car, these rights must be abided by and can not be denied or altered. The Matus Law Group has extensive experience in handling land disputes and the law involving easements, and we take great pride in keeping our clients fully informed about their real estate rights. This article explains Public vs. Private Easements in New Jersey.
What is an Easement?
An easement is a nonpossessory right for another party to use your land for specific obligations or purposes. These rights remain in effect even if your land is sold. Common examples of easements include your neighbors’ access rights to a shared driveway, municipal easements that give cities or towns the ability to maintain services on their properties, and utility easements that allow service providers to operate their lines (e.g. water, sewer, electric, cable, phone) on your land. Because of this permanence, easements are a more durable property interest than lesser ones such as licenses (a revocable permission to do something); profit a pendre (a right to enter and remove something from another’s soil); or a profit in fee (a right to receive a fee for using someone else’s land).
Easements can be created either expressly or by prescriptive operation. An express easement is one that is recorded with deeds and includes the signatures of both the dominant and servient tenements. The deed must also clearly identify the purpose and location of the easement. This type of easement is very useful because it can be enforced against others, and the recording ensures that a future purchaser has notice of its existence.
The doctrine of estoppel or acquiescence is the basis for many easements that are not explicitly created in writing. Generally, this doctrine applies where it is obvious that the parties have mutually agreed to certain uses of the land over a period of time. However, it is important to note that the “necessity” of an easement by estoppel or acquiescence is not as clear and convincing as an express easement.
Regardless of how an easement is created, its duration can be extremely long. A well-drafted and recorded easement is an “enforceable covenant” that runs with the land and survives any conveyance of the property. Conversely, an informal agreement that is not formally recorded becomes an agreement between the parties involved and cannot be enforced against other parties, including future owners of the property. For this reason, retaining legal counsel to help form an easement is usually the best option. An experienced New Jersey real estate attorney can assist with this process and help you avoid any costly mistakes.
Easements often come as a surprise to real estate professionals and their clients. Many people purchase land that has an easement on it without fully understanding what that means for the property’s future uses, and a few cases have even resulted in litigation.
An easement is a non-possessory right for another party to use your property for designated obligations or purposes. It is tied to a specific piece of real estate and will remain in effect even if you sell it. Common types of easements include driveway access rights, utility easements, and the rights of adjacent property owners to cross over your land. If you want to make sure that an easement is removed from your property before selling it, you should consult with a New Jersey real estate lawyer.
Do easements transfer to new owners?
This largely depends on the type of easement. An easement in gross grants the right to cross over someone else’s property to a specific person or entity and is personal in nature; therefore, it does not transfer when the property is sold. This type of easement would be an exception, for example, if you gave your neighbor an easement in gross allowing them to go fishing at the public creek located on your land.
Other easements are appurtenant and “run with the land.” For example, if you give your neighbor access to your driveway through an appurtenant easement, it will automatically transfer when you sell your property because it is attached to the property. This is also true for other types of easements, including those granted by the municipality or utility companies.
The last common type of easement is implied by necessity, which occurs when a parcel of land is so large that it cannot be reached without crossing over the neighboring property. This is usually the case when larger tracts are subdivided into smaller parcels.
Will an easement affect my property’s value?
An easement will not necessarily lower your property’s value, but it could affect the number of interested buyers. It will depend on the kind of easement and its purpose, such as if it prevents you from putting up a home, landscaping, or cultivating a garden. You may need to provide your potential buyers with a written explanation of the type of easement that is on your property and its purpose in order to get an offer.
However, it is important to note that an easement may not be an issue if you are able to negotiate with the buyer in order to resolve any issues that might arise with the easement.
Easements are an important part of New Jersey real estate law and are often a surprise to property owners. A real estate lawyer who is experienced in zoning issues and easements can help property owners understand how an easement may affect the sale of their home or business.
An easement is a non-possessory right to use someone else’s land for specific purposes. It is an encumbrance on a property’s title and remains in effect even after the original circumstances that gave rise to its creation have changed. Easements are common in areas such as utility rights, access rights, and construction. They are also used for non physical uses such as conservation.
Easement creation requires the same formalities as other transfers of ownership of property in New Jersey. This includes the preparation of an easement deed, a signature and notary seal, and recording of the deed in the county clerk’s office or register of deeds for the location of the property. A recorded easement deed gives constructive notice to subsequent purchasers, mortgagees and judgment creditors.
The most common type of easement is an affirmative one, which grants a person the right to use a piece of land without possessing it. Negative easements are less common and involve preserving something such as a view or access to light. An affirmative easement must be described in detail to be valid and the description must be consistent with the easement’s purpose.
If a landowner creates an easement for a road through their property, they must be able to show that the road has been in continuous use for a certain period of time. If a property owner wants to build a house on their land where an easement exists, the easement holder must be able to prove that they have been using the road for the same purpose for a certain amount of time. If the easement holder attempts to change the use of the road to something different, such as for a driveway or parking lot, it is likely that their claim will fail.
Easements can be terminated by abandonment, merger, end of necessity, demolition, recording act, condemnation or adverse possession. There is a strong public policy in New Jersey that people should not be denied their legal rights to the use of land for certain purposes. If a person is found to be in violation of an easement, it is best that they contact a New Jersey real estate attorney who is familiar with easement cases.
The Matus Law Group
125 Half Mile Rd #201A, Red Bank, NJ 07701
(732) 785-4453