Understanding Easements

December 28, 2023
Real Estate Easements, wooded property with gate, easement example
Real Estate Easements

Easements designate land to be accessible to individuals other than the land owner.

Does Your Property Have an Easement? Is it recorded?

When buying property that has a recorded easement, it is a good idea to find out what type of easement it is, when that easement was recorded and when it will expire. 

What is an easement? 

An easement allows a person to enter onto another’s property as a right of way or to use the property according to the specified rules of the easement. Easements are usually created by a transfer of deed or by a will. To be enforceable, they need to be in writing, signed, notarized and recorded with the Register of Deeds. It is best to talk to an attorney when obtaining legal information about easements.

Understanding Property Easements
Diagram shows Tom’s land as being landlocked by Mary’s property. Mary has granted Tom access to his land by creating an Easement by Necessity with a driveway. This easement should be recorded to prevent access issues if either party decides to sell their property.

Common Types of Property Easements

Written Easement: A legal document executed by the “servient” or owner of the land that grants right of way access to another “dominate” that benefits from granted access. Must be in written form and recorded to be enforceable.  

Implied Easement: Easements that have been granted verbally between adjoining neighbors but have gone unrecorded are implied. Such unrecorded easements can go unnoticed when transferring a title, causing a burden to new buyers who may no longer be able to access their property unless they are granted a new easement. 

Prescriptive Easement: Easements that have been granted through continuous and uninterrupted use for a period of time, unknowingly and without permission and then given adverse possession.   

Easement by Necessity: This is the most common type of easement and occurs when property owner X owns property that would otherwise be landlocked, and an easement by necessity is given by property owner Y, allowing property owner X to access their property. This access is transferred to other buyers at time of sale through title and is written and recorded.

Property Easement by Necessity
Property Easement by Necessity

Recording Property Easements

Easements can expire unknowingly if you are unaware of their time limits. If a recorded easement was drafted prior to July 1, 1980, the limitation period is good for 60 years. On or after July 1, 1980, the limitation period is good for 40 years. To be enforceable, the easement needs to be recorded in the Register of Deeds office.

Road Maintenance Agreements

Those who have a driveway Easement by Necessity may also have a road maintenance agreement. If you have a shared road with multiple driveways attached to it, that is not maintained by the city or county, you may have a road maintenance agreement with other owners who also share that road. This agreement is set in place to cover any expenses of maintaining the road that all owners use, regardless of property type (house or vacant land). Maintenance may include paving and gravel repair, widening the road, removing downed trees during storms, or snow removal. By dividing expenses among all homeowners, the road maintenance is more cost effective and can be managed in a timely fashion. It also eliminates any questions, responsibility, cost, or service hiring. If purchasing a property, it is a good idea to check with the seller to determine whether there is a road maintenance agreement. This should be done prior to closing, as documents need to be signed and returned to the appropriate persons in charge of maintenance.

Questions about easements?

If you have further questions about easements and how they might affect a property that you own or are purchasing, it is best to contact your local courthouse or connect with the Register of Deeds and Zoning departments. Before closing on a property make sure the Title Company has the correct information, so you don’t have future issues after the sale is finalized.   

Route 63 Realty

We can provide you the expertise you’re looking for! Our real estate agents offer superior communication along with area and market knowledge.

Stop by or give us a call at Route 63 Realty in Hayward, Wisconsin 715-558-7846. Our staff are readily available to help answer any questions you may have.

“Bringing Buyers and Sellers Together One Route at a Time!” – Route 63 Realty