Feeling Uneasy About an Easement?

On a recent trip from Framingham to Times Square, NY on the LIMOLINER, the film Burlesque was shown. While I enjoyed the music and choreography throughout the film, the Realtor side of me saw the film from another perspective. More memorable to me was the storyline which involved the owner of the burlesque club saving her business and paying off her mortgage by selling the air rights above her building for a hefty sum to a property owner who was in jeopardy of losing his water views due to the potential development of another commercial property. This was my first encounter with the topic of Air Rights.

Did you know that the rights to use the air can be bought, sold or leased?

You may know people who don’t own waterfront property, but are happy to tell you their house provides them with rights to use a path that provides them with access to the beach or a dock.

While on vacation in Edgartown last week, I walked down a path near the marina that provides an easement for public use from dawn til midnight, marked clearly with a sign!  It reminded that there are certain aspects of property ownership that are not always obvious to most.

A large number of properties have easements of one kind or another.

Simply put, an easement is a right given to a person or entity to use a piece of land that he or she does not own, for a specific purpose.

When asked about the most commonly seen easements, Attorney Michael Krone, vice president and chief operating officer Kriss Law Atlantic (www.krisslaw.net) said, "The most common are utility easements for telephone, power, sewer or water lines. These are generally not problematic because the homeowner can either see the easement (telephone poles, etc.) or the easements don’t otherwise adversely affect the use of the premises. However, we sometimes run across an old easement, like a water line or sewer line that runs under the house. These are problematic because the easement almost always allows the benefited party (user of the easement) to open or repair the utility and have no obligation to repair damage to structures caused by the digging.”

An example of municipal easements here in Framingham is described in the town website under Public Works, with regard to wastewater easements

When asked if there are easements that may cause a wrinkle with financing a particular piece of property, attorney Krone said, “The most common issue that we are seeing lenders have with respect to easements are driveway easements. These would be unrecorded rights that parties may have to pass over a homeowner’s property to access their home which is adjacent.  These are often not formal, written or recorded easements. Fannie Mae, Freddie Mac and FHA lending guidelines often require that these be in writing and recorded. This means that the homeowner looking to sell or refinance, needs to approach his neighbor(s) and get them to sign a common driveway easement or agreement. This is not always easy and made more difficult if there are numerous parties involved. These matters have often delayed closings and even caused loans to be denied. Private roadways encounter the same issue. This is when the city or town never took the roadway as a public road. The lender will often require a private roadway maintenance agreement. Again, not easy to get if there are numerous owners that it affects."

Often, an easement is described in the property deed and is recorded at the Registry but Krone said, “As many easements  are older than 50 years they are not often picked up in a title examination at the registry even if they are recorded since the purchase transaction title examination only goes back 50 years. Thus, many easements recorded prior to 1961 will not be found in a purchase transaction and may still affect the property without the owner’s knowledge.”

Covenants may apply to a particular property. These dictate restrictions, which generally affect the appearance of a home, usually determined by a developer  with regard to paint colors, clotheslines, landscaping, fencing or parking of RVs in the driveway.

If buying or selling a home, discussion and disclosure of convenants or easements early on will enable all parties to move forward with a sale with less anxiety and better understanding.  Your Realtor or attorney can help direct you to sources to identify an easement or convenant  is associated with your property.