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Harshbarger Law Firm | Licensed In Montana, Arizona & Texas
The Southwest Montana Law Firm For All Your Legal Needs
Call Today
406-299-9233

Do you have to honor an easement when you buy a property?

On Behalf of | Apr 30, 2023 | Real Estate |

An easement allows at least one non-owner to use a piece of property. Generally, an easement will not actually give the second individual any ownership rights. They simply have the right to use that property, but it is not an asset that they own and they can’t change it in any way.

For example, one piece of property may be cut off from the road by another. The property owner who is closer to the road may agree to an easement that allows the second owner to have a driveway running through their property. The two neighbors may also use a shared driveway. This gives both people access to the land, even though they both do not own the land in question.

If you are considering buying a piece of property that has an easement attached to it, do you have to honor that easement? Or can you buy the property and terminate the easement?

What type of easement is it?

There are two basic types of easements that people can use. The first is an easement in gross. This is an agreement between two property owners that is not attached to the land. As a result, you would not have to honor it because you were not part of the agreement that was negotiated between two owners and not attached to the land. This kind of easement terminates as a matter of course when one of the owners terminates their interest in the agreement by selling land affected by the easement.

The other primary type of easement is one that “runs with the land.” This means that the easement is essentially considered part of the property itself. When you buy property affected by this kind of easement, it cannot be terminated unilaterally.

Complicated real estate situations

The question of easements is just one way in which real estate purchases can become a bit more complex than expected. It’s important to understand all of the proper legal steps to take if you are interested in making a purchase, as you might otherwise face challenges that could have been addressed proactively.