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What are Easements in Real Estate?

Last updated on: January 18, 2024

Although easements are a key part of the New Jersey property law system, they can come as an unpleasant surprise when you buy a home or piece of commercial real estate, only to discover that you don’t have total control of your new property. In this blog, the New Jersey real estate attorneys at the Matus Law Group can explain what easements are, how they affect land ownership, and the best way to deal with them if they become an issue. Our dedicated team of attorneys can assist you in navigating these complexities and safeguarding your property interests. Contact us at (732) 785-4453 to schedule a consultation and get the support you need to protect your property rights.

What is an Easement?

An easement is a nonpossessory right for another party to use your land for a specific purpose. In other words, they don’t own it, but they have the right to use it for designated obligations or purposes. This right remains in effect even if the property is sold.

Common examples of easements include:

  • Adjacent property owner rights that allow your neighbor to access a shared driveway or go across your land to reach their own property.
  • Municipal easements that give the municipality the right to maintain or install services to your lot or subdivision.
  • Utility easements that gives service providers access to your property to maintain and operate water, sewer, cable, and telephone lines.

In New Jersey, easements can be created by prescription or extended use over a long time period. For example, if your neighbor can show that they have been using your roadway to access their landlocked piece of real estate for years, they may acquire an easement.

Easements can restrict your ability to add an extension to your home, cultivate a garden, or build a backyard patio. If you don’t comply with the access requirements, you may be legally obligated to undo the obstruction (e.g. deck, swimming pool) at your own expense.

Aspect of Easements Details
Definition An easement is a nonpossessory right that allows another party to use your land for specific purposes without owning the land itself.
Formation Easements in New Jersey can be established in various ways, often involving legal procedures. Express easements are contractual and require signatures from both dominant and servient tenements. These are usually recorded with property deeds.
Manage Dealing with easement issues is best done before purchasing property. Conduct a title search to identify existing easements. If issues arise, consult legal counsel and decide whether to proceed with the purchase agreement.

Formation of Easements

New Jersey property owners can form easements in many ways. However, due to potential legal complications involved, retaining legal counsel is usually best. An express easement, which is contractually binding, requires both the signatures of dominant and servient tenements. These easements are usually recorded with deeds and are legally binding. An attorney can assist you in preparing the paperwork and forming this easement.

When one property is dependent on another property for access, easements of necessity arise. This means that one property owner can’t reach their barn without crossing the property of another. These situations are usually caused by larger properties being subdivided into smaller parcels. These easements are subject to New Jersey law which presumes that right-of-way applies.

Prescriptive easements are another way that easements can be formed. These easements are based on common law and arise when a servient owner’s property is used for a specific purpose and only temporarily. The land use must be acknowledged by the landowner and must be continually used for at least 20 years. There may also be other restrictions and rules for this type of easement.

How Do You Deal With an Easement?

The best time to deal with easement issues is before you buy the property. When you conduct a title search, most easements will show up. If the seller can’t or won’t discharge it, you have to decide whether you want to continue with the purchase agreement.

Easements can be terminated by expiration of their designated term or abandonment. There are other options, like acquiring your neighbor’s land (when adjacent property owner rights create the easement), but they can be expensive and complicated. You will definitely want to speak with a New Jersey real estate attorney about the impact of an easement on a property you own or are thinking about purchasing.

Real estate attorney in New Jersey

Who Owns Right-Of-Way Property?

Property owners often have questions about who is responsible for maintaining the sidewalk, curb, and trees in the right-of-way next to their home. The right-of-way is the area along the street that the town has access to for municipal purposes.

While the town has right of access, the property owner is generally responsible for the maintenance, repair, and removal of sidewalks, curbs, and trees in the right-of-way next to their property. There are some exceptions, but in most cases, the property owner must take care of these areas even though they are in the public right-of-way.

This can be confusing for homeowners since the right-of-way is on the public street. But just because the town has access to this area does not mean they are responsible for maintaining it. The obligation falls to the property owner in most cases.

Navigating right-of-way property issues can be complicated in New Jersey. An attorney experienced in real estate law can provide guidance on your responsibilities. They can advise you on disputes with the town over maintenance and help protect your interests when it comes to right-of-way property.

Contact a New Jersey Easement Attorney

Easements can be frustrating to deal with, which is why you need to make an informed acquisition. At Matus Law Group, we can carefully review the title prior to purchase to ensure that you won’t be restricted in how you can use the property, or advise you on the best way to deal with easements that come to light after the fact. For more information or to schedule a consultation with one of our attorneys, please contact (732) 281 – 0060.

Christine Matus

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Christine Matus
Christine Matus

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