Question: We have just settlement on our new home. The title attorney has given us a copy of the title report, and there is a reference to a "utility easement" in favor of the local telephone company. It looks like this easement is somewhere in our back yard. What is an easement? Does this affect us? We plan to expand our house in the back and also have a vegetable garden there.
The law of easements is complex. There are many different kinds of easements, ranging from "rights of way," "prescriptive easements," "easements by implication," and "easements by necessity." The most common easement is a "right of way." This is generally accomplished by a grant from one owner of land to another. Let’s take this example: there is a road that runs North and South. On the West side of the road there is a river. Between the river and the road there are two houses: house A sits adjacent to the road, and house B sits between house A and the river. In order for the occupants of house B to get to the road, they must cross over the land owned by house A. Generally, this is accomplished by a deed of easement, which the owner of house A grants to the owner of house B. This easement deed spells out the rights of the occupants of the river front house to cross over the land owned by house A. Sometimes the easement is quite simple: "B has a right of way over property A." Some easements are more specific: "B has the right of way for ingress and egress over five feet of house A, as delineated in a survey which is attached to this deed of easement." Many easements are actually recorded on the land records where the property is located. This puts the world on notice -- and especially the owner and subsequent owners of house A -- that their house is subject to this easement of right of way. But sometimes, there is no recorded easement. That’s where the legal fights begin. The owner of house B goes to court and asks the Judge to issue an order requiring that an easement be created over house A. This is known as an easement by necessity -- it is necessary that house B get the easement so that the owner can get to the road. Most utility companies -- such as electric, gas and telephone -- have arranged with land owners to grant them an easement for the purpose of installing and maintaining the lines or cables which provide the utility service to the individual home. Anne Arundel County is located in the State of Maryland. Recently, its Department of Public Works (DPW) issued a "customer update" in which these easements were discussed. According to the DPW: An easement is permission to use an area of land while the property owner maintains ownership... Utility easements entitle the utility companies to run their pipes, wires, cables, conduits, etc. across that portion of your property both over and under the ground... Although land within the easement belongs to the property owner, the easement gives the utility the right to place its pipes, cables, wires, etc. on the property and also to access them for maintenance, repair or replacement. Property owners are not permitted to change the easement area in any way; they cannot prevent the utility company from making reasonable use of the easement. For example, BG&E is a utility company doing business in the State of Maryland. They have prepared a very helpful frequently asked questions (FAQ) statement concerning easements, which can be found on their website . Question: How does an easement affect what I can do with my property? Answer:An easement affects the use of your property by controlling what you can build, if trees can be planted, how trees and other vegetation may be maintained, and what outdoor activities you can carry out on the easement. Examples of permitted uses of the easements are gardens, patrol by law enforcement officials, and farming. Examples of non-permitted uses are structures, swimming pools and septic fields, or wells. Why? Because these uses may create personal safety problems, and will jeopardize our ability to provide you with safe and reliable energy services. Your title attorney has advised you of the existence of a utility easement. You must immediately do some research to find out exactly where the easement is located, and what restrictions are included. Ask the attorney for a copy of the recorded easement. Your lender will probably require you to obtain a survey of the property. Review that survey, and if the easement is not reflected on the survey, go back to the surveyor and ask for the location of that easement. Most utility companies have an information office which will also be helpful. And in the Washington metropolitan area, you can also get assistance from Miss Utility. This is a one-call notification center that notifies subscribing underground utility owners of your proposed plans. You can get additional information on the web at www.missutility.net . Different states have different laws regarding excavating your land. For example, many states require that the utility company physically mark the underground utility within two days from the time Miss Utility is contacted by the homeowner. But it is the law, in many states, that before you dig in your own back yard, you must call Miss Utility. Why? You certainly do not want to accidentally break into a gas line or interrupt telephone service to your home and to many of your neighbors. It should be noted that even if you plan on digging only a couple of inches below the surface, you must contact Miss Utility. According to their website information, "anytime you alter the surface of the ground, it is considered excavation, this includes: driving pins, rods, and fence posts in the ground." It may be that the easement will require you to alter your construction plans. But it is not a title defect and should not impact on your ability to get a mortgage loan, or to sell your house in the future.
