How Easements and Right-of-Ways Can Affect Your Properties Value

by Scotty Ledford, P.A. 02/13/2020




 Photo by Andrew Martin via Pixabay

It’s not uncommon for homebuyers to discover that the land they purchased may not be entirely their own. Another party may have gained a legal right to use or traverse your property. Easements and right-of-ways can be established by a number of mechanisms and go unnoticed, particularly in undeveloped parcels or when the previous owners were absent.

When homeowners discover someone else holds sway over part of your property, the first-blush reaction is often about loss of value. You paid for full ownership and the easement will likely diminish your resale value. But homebuyers would be wise to proceed with caution because the cost of defending against a claim or creating hostilities with a neighbor could prove emotionally taxing.

What is an Easement or Right-of-Way?

The common law practice of easements has its roots in the free flow of water and the ability to cross a community member’s land in olden times. This practice accounted for the lack of roadways and the need to traverse tracts of land. Although this is a somewhat outdated concept, long-standing easements exist. If you are considering purchasing a property that involves an easement, it’s important to understand that you still own the pathway to the other parcel. But you may never be able to utilize it actively.

For all practical purposes, a right-of-way is a type of easement that has been formalized. Landowners generally agree to record the easement in a deed or other legally-binding agreement. Thoroughly researched land records are likely to uncover these easements. This is why having a property deed vetted before purchasing a property remains standard practice. But a worrisome mechanism known as “adverse possession” may put new homeowners in a legal bind because the existence of an easement may go unknown.

What Homebuyers Need to Know About Adverse Possession

Adverse possession is often associated with the term “squatters rights.” That colloquial term came out of people living on unused land and gaining ownership by establishing their presence over time. Today, people more often gain adverse possession rights by using part of a property for access or travel.

If, for instance, a neighbor routinely drives over an undeveloped part of your property to get to theirs, they could be gaining a right to that portion. On undeveloped land, hunters, hikers, and other outdoors enthusiasts may walk a path across your land. Over time, they can establish a right that prevents you from enclosing the land or developing that section. While defending against an adverse possession lawsuit can be emotionally draining, there may be a silver lining. The courts usually apply a rigorous four-part standard that few squatters meet. These include the following.

  • Hostile: This involves issues such as the user not knowing the land was owned by another or using it due to a mistake about where the property lines were located.
  • Actual Possession: The claimant must have been physically present on the land.
  • Open and Notorious: This standard looks at whether the trespasser used the land in a fashion that was obvious to the owner.
  • Exclusive and Continuous: This tends to be the standard that upends claims. The trespasser must have physically used the land without interruption.

Hiring an attorney and mounting a defense of your property can be an exhausting ordeal. It’s one of the last things any homeowner wants to go through. That’s why conducting your due diligence about easements and right-of-ways remains as crucial as taking out title insurance when you buy a home.

About the Author
Author

Scotty Ledford, P.A.

Originally from Southern Maryland and the Washington D.C. Area, Scotty graduated from Frederick Douglass High School in 1980. Upon earning an Associated Degree in Business from Prince George's College in 1982 he secured a manager position at Homes & Land Magazine of Southern Maryland.

In 1986, Scotty opened his own franchise; Home & Land Magazine of Prince George's County and later became the managing partner of the Southern Maryland Publication. For twenty-three years Scotty always placed in the "Top 20 Publisher's Club" in an arena of over 300 publishers/owner. He also won the coveted "Publisher of the Year Award" in 1991.

After purchasing a condo on the West Coast of Florida in 2001, Scotty hired a property manager and put it in the monthly rental program. If the condo didn't rent on a given month, he would come down from Maryland and stay at the condo for a couple of weeks at a time. Well, it didn't take long for Scotty to dislike having to go home at the end of his stay. It was apparent that Florida was going to become his new full time home and he moved to Sarasota in January of 2003.

Having always been in the real estate industry, Scotty obtained his Florida Real Estate License in 2004. Shortly after that, he sold his Homes & Land franchises in Maryland. Scotty held his license with a couple of large national brokers initially but decided that a local firm was a wiser idea. Recently Scotty became affiliated with Fine Properties saying "No other broker can give me the tools needed to succeed in representing my clients and their interests better than Fine Properties."

As a residential agent representing both sellers and buyers in Sarasota and Manatee Counties, Scotty has the experience, resources and marketing background to help anyone realize their real estate goals in the Sarasota-Manatee County market.