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How Can You Create an Easement Through Your Neighbor's Property?

Two man on neighbor's fence
An easement allows you access through a neighbor's property. Easements are common when there are things such as shared driveways or shared roads. If you need to cut through a neighbor's property, an easement is what you need to make the arrangement formal and legal.

Why Should You Get an Easement?

Even if your neighbor tolerates you cutting through their property now, they could sell their home. Without an easement, the next person who purchases the property may choose not to allow you to enter.  

Further, even if you need to cut through a neighbor's property, they don't need to let you without an easement. You could find yourself without access very quickly. 

Getting an easement can be difficult. Many homeowners don't want to add easements to their property because it can harm their property values.

Getting an Easement Through Negotiation

The easiest way to get an easement is through negotiation. If you can successfully negotiate with your neighbor about putting an easement in, a contract can be drawn up and the easement will become a permanent feature of their property. Often, you may need to pay the homeowner for the easement: after all, it is going to lower their property values. 

Getting an Easement Through Necessity

What if your neighbor refuses to give you an easement but you absolutely need an easement? This could be possible if your land somehow becomes blocked off, and you need to go through your neighbor's property in order to get to your home. This can also happen if you purchase land that is not on a public road and the public road is through your neighbor's property. 

You may be able to claim an easement due to necessity. However, remember that you can't do this if you caused the situation that you encountered. For instance, if you sold the rights to your main access road, losing access to your home, it would be considered a foreseeable condition that you caused. Your neighbor would not be obligated to give you an easement in this situation. 

Getting an Easement Through Prescription

What if you've been traveling through the same area for 10 years and suddenly your neighbor decides that you can't go through there anymore? You may be able to claim an easement through prescription. This is a little like claiming adverse possession. Since the owner did not enforce their lack of easement for a substantial amount of time, you can argue that it became a legal easement. 

As with adverse possession, getting an easement through prescription requires that the owner be aware that you are accessing their property and that the owner not take any measures to stop you from doing this. Unlike adverse possession, an easement through prescription doesn't mean that you own the land that you are using as an easement. It only means that you are allowed to use the property.

Having an Easement Agreement Finalized

Regardless of which method you use, you will need to create an easement agreement that clearly outlines how the easement is to be used and where the easement is located. This is both for your protection and your neighbor's protection. This document is usually prepared by a legal professional and should be both notarized and witnessed.

Once an easement is established, it will be passed down with the property itself. New owners will need to honor this. 

If you need to get an easement, the time to consult with a real estate attorney is now. Since most homeowners don't want an easement on their property, negotiating may become difficult. Call William C. Hood, Attorney at Law, for more information