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Understanding easements: accessing land without taking it

Many posts on this blog discuss situations in which home and business owners lose their property to eminent domain claims from the government or a private entity. However, there are also situations in which the government can access or use private property without actually acquiring it.

This is an easement. An easement grants a party the right to use land owned by another person for specific reasons. For instance, the government might seek an easement to dig and bury pipelines, construct sidewalks or build a library. Parties that obtain an easement do not own the land, but they can access it for their purposes.

How are easements created?

In California, there are four ways easements are created.

  1. Express easements, which occur when a landowner volunteers his or her property for an easement.
  2. Implied easements by existing use, which apply when land is divided into two sections. If the second property must still use portions of the first property, like a roadway, an implied easement could exist.
  3. Easement by necessity, or an easement that grants someone access to the property in question because there is no viable alternative to using someone else's land.
  4. Prescriptive easement, which is open, continued use of another person's property without his or her consent that continues for five years.

Assigning value to an easement

Easements can affect property value, and property owners should receive fair compensation for the other party's use of the land. Valuing an easement is difficult, but there are ways to get a rough idea of an easement's value.

As discussed in this article, property owners should appraise the whole property without the easement first. Then appraise the property again, this time factoring in the burden of an easement. Consider any value or encumbrances, as well as any elements that interfere with use or otherwise impairs value.

Subtract the second appraised value from the first appraisal, and that can represent an estimated value of the easement.

Know your legal options

Property owners faced with a proposed easement would be wise to understand their legal options and rights. This includes protecting land and securing fair compensation. To do this, it can be wise to consult an experienced attorney.

 

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