What is an easement and should I give one away?
One day your next door neighbor approaches you and asks for an easement over your property for a driveway to her house. Should you say, yes, because I want to be a good neighbor, or no because it is my property. As with most legal issues, the answer is “it depends” In the case of your neighbor, your agreement or refusal should be based on the terms and conditions of the easement including whether any consideration will be paid.
An easement is generally described as a right of another property or property owner to use your property for a particular and limited purpose. It is not the same as ownership but depending on its terms and conditions, it can come pretty close (e.g., exclusive easement).
In making your decision on whether to grant the easement, there are several issues to discuss, negotiate, and resolve with your neighbor before entering into a recordable easement agreement:
- What is the specific purpose of the easement and what are the limitations and conditions on its use (e.g., only for residential and not commercial vehicular traffic, no parking or blocking easement area, etc.)?
- Is the easement area clearly described by survey?
- Will your neighbor provide insurance and indemnification against damage to your property or injury to others occurring within the easement area?
- Is the use of the easement exclusively for your neighbor’s property and no other?
- Will the easement last forever or will it be temporary (i.e., runs with the land or terminates on your neighbor’s transfer of ownership)?
- Who will be responsible to maintain and repair the easement area and to what standard and what happens if the responsible party fails to maintain or repair to that standard?
- Who pays the taxes on the easement area?
- Will your bank or mortgage holder consent to the easement (required in Maryland)?
- Do you live in a development governed by covenants and a homeowners’ association and is its consent required for the easement and driveway?
- How much should you be paid for the easement?
An experienced real estate attorney can assist you with these questions and many others that should be considered when you are requested to grant an easement and can adequately protect your interests in the recordable easement agreement.
ABOUT DAVID SEVERN
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David A. Severn has been practicing law in Frederick MD, since 1980 and focuses his practice on land use, development and real estate. He represents clients in all aspects of the zoning and land use process appearing regularly before planning commissions, boards of appeal and legislative bodies of Frederick County, Washington County and their municipalities. He has served as lead counsel in numerous large and complex development projects including “Carroll Creek Park” a mixed use, public-private partnership re-development project in historic downtown Frederick modeled on River Walk in San Antonio, “Frederick Crossing”, the first large mixed use commercial retail/employment center in Frederick County and the redevelopment of the Frederick Towne Mall. David also works for the public sector in serving as legal counsel to the Town of Walkersville, the City of Brunswick, Frederick County and Washington County Public Schools for real estate and land use matters.
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