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What You Need to Know About Property Easements

When you own a piece of property, are you the only one who has the right to access it? We take a look at the world of property easements.

Written by Dan Mitchell
Photo: fotolia.com/ Pavel Klimenko
 
You’ve decided you want to own a log home on a picturesque piece of property – congratulations! I’m sure you’re chomping at the bit to approach log home providers and get your design underway, but first things first: It’s vital that you fully understand your rights to the land on which you intend to build this dream home.
 
For starters, whether you inherited the property, purchased it years in advance of planning your log home or are ready to buy land now, have the parcel surveyed. You may think you know the lay of the land, but you’d be surprised how often the perceived boundaries are in conflict with the true property lines.
 
Today’s surveyors use GPS coordinates, which are much more accurate, to delineate property lines. Back in the good old days, they’d measure length and run, accounting for slope and pitch, to get the property markers as close as they could, but now digital surveying equipment takes almost all of the human error out of calculating the borders.
 

Implied Easements

 
Once you are 100 percent sure of your property lines, the next step is to find out if anyone else has been using any part of your land for their own purposes.  Whether it’s a makeshift or paved driveway to access their property, a fence that infringes on your yard, or even if they’ve allowed livestock to graze on your grounds, they may have a legal claim to continue doing so.
 
This type of implied right-of-way is called a “prescriptive” or “inferred” easement, and it’s one of the most common property issues that comes up; however, there are a few stipulations involved. The use must be, as what’s called in legalese, “open and notorious,” meaning they weren’t trying to hide their use of the property. It also has to have been happening for the statutory period in your jurisdiction, which can range from a few years to decades. 
 
Of course you can nip this whole thing in the bud by keeping tabs on your property and stopping any non-authorized use in its tracks with “private property” and “no trespassing signs.” Still, these signs may only prevent any future individuals who want to use your land from doing so legally; they may not hold up in court if their installation comes after a party has been using the land longer than the statutory period.
 
An example of this is you’ve inherited land from your grandfather who allowed a neighbor to use a portion of it. That person could have the legal right to continue that use. Easements stay with the property — not the owner — so even though you may not want to continue to allow the use afforded by a previous owner of the land, it may be out of your hands.
 
If you decide to close your property off and deny users the access they once enjoyed, in my opinion, the best tactic is to be a good neighbor and have an open, honest conversation about your building plans. If the area they have been using conflicts with your log home’s construction, perhaps you can settle on a mutually agreeable alternative.
 

Other Rights & Easements

 
The inferred easement may be the most common, but it’s far from the only property right to consider. Just because you have the right to build on your property doesn’t necessarily mean you own what’s on top of it or beneath it. That’s where mineral, water and logging rights all come into play.
 
It’s not uncommon for people or entities to own subsurface rights to a large swath of land, and if this is the case with your property, they would have the right to dig or drill for water, oil, natural gas, etc., on your acreage. Likewise, if your property is near or part of a forest, someone may own the logging rights to the land and, at some point, come in and harvest the trees.
 
Finally, you’ll want to look into the existence of potential utility easements. Your county could have granted utility easements to your property, so one day, you could wake up to find a 100-foot-tall high-tension electrical tower in or near your yard, obstructing your perfect view. Ask your local zoning or permitting office if this kind of easement could affect you down the line.
 

Protect Your Interests

 
With so much to consider, how do you know what to expect when it comes to your future log home’s site? Request a copy of the current deed/title from the county courthouse. Not only will it indicate the perimeter of your lot,  any granted easements and existing mineral, water or logging rights, it also will show you if there are any voluntary or involuntary liens on the property, like property tax, IRS or mechanic’s liens. You also want to be sure the chain of title has been accurately recorded over time, meaning no other individuals can lay claim to the land. Ideally, you want a “clean and clear” title.
 
While you’re conducting your research, you’d be wise to investigate the future plans for the area around your site. Go to your city or county zoning office to request to see the 20-year master plan for the region and ask what the anticipated growth is. You don’t want to build your forever log home on the perfect piece of bucolic land only to be abutted to a major freeway a decade down the road.
 
Finally, insure yourself by obtaining a liability policy on your property, because if someone — even if he or she is technically trespassing — should be injured on your land, you could be held accountable. Being proactive now could save you a lot of headaches (and money) later on. 
 

 
Dan Mitchell is a builder and a Log & Timber Home University professor. He owns Eagle CDI, a construction firm based near Knoxville,Tennessee.