Can You Build on a Property Easement?

A man building a fence at the edge of his property
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Even if you don't think so, you might have an easement on your property. Easements usually lie there quietly, not affecting you for years or decades. Then, you decide to bump out your house, put on an addition, dig a pool, or erect a fence and you find out that you have a legal easement on your property.

What Is an Easement?

Easements are legal designations that allow individuals or entities to use portions of your property (to build on or for physical access), even though you still own the land and technically have a right to build on it. The person or entity who is allowed to do this is called the dominant estate; you are the servient estate.

Property easements come in many shapes and forms. There are utility easements that allow sewer and gas lines. There are driveway easements that allow access to your property in the form of a short road or driveway. There are sidewalk easements that allow the public to walk in front of your property, as long as they stay on the sidewalk.

These easements (and others) are part of this strange world where the public, government agencies, and utility companies have access to your property, yet you still own the property. 

How to Find out If You Have One

Most homeowners should already know that their property contains an easement: it's right there in the title documents when you buy the house. But as the years go by, we tend to forget such things. If the homeowner dies and the house goes to a child, it's easy to miss such details altogether when the transaction is made. Any good real estate agent or title clerk will point out that the property you intend to purchase has an easement running through it.

If you can't find your title documents, check your county website's tax assessor section. Likely you can find documents relating to your property, including easements.

Easements That May Affect You

The world abounds with easements, but only certain types may affect a homeowner who wants to build or remodel. Some types of easements:

  1. Utility Easements (Below Ground): Storm drains, sanitary sewer mains, or natural gas lines frequently run through and under private property.
  2. Utility Easements (Above Ground): Electrical power lines or telephone lines also run over private property.
  3. Sidewalk Easements: These are the most common type of easement, the type which countless homeowners have on their property. Even if a sidewalk isn't physically in place, you may still have a sidewalk easement in place on paper.
  4. Driveway Easements: A typical scenario: you have a deep lot which you subdivide into two (front and back). You build your own house on the front lot and sell the back lot. The buyer builds a house on the back lot. To gain access to that back lot, the buyer should have a driveway easement.
  5. Deadend or Beach Easements: These easements usually run along the side border of a property and allow the public access to an area beyond your property, such as a beach, park, or simply as a shortcut.
  6. Conservation Easements: This may be a greenbelt or park running alongside your property.
  7. View Easements: This is less common, but becoming more common as communities become aware of the monetary value of sight lines. A view easement might give your neighbor the right to enjoy a view of the coastline without you blocking the view by building your house up, planting trees, or adding other obstructions. Your house's warranty deed should have an attachment that spells out the conditions of the easement. The documents received back from the title company will have your warranty deed and attachments.

What Can You Build?

The short and accurate and prudent answer: nothing. If you value peace of mind over everything else, staying off of an easement is the way to go, and this includes any kind of building, from a house addition all the way down to a child's playhouse. But there is some flexibility when it comes to the rules.

  • FencesFences regularly get built along or across easements. Homeowners who do this must expect the chance that their fence might be pulled down by a dominant estate (utility company, for example). A few utility companies state that, as a courtesy, they will do their best to reconstruct the fence.
  • Hot Tubs, Pools: Above-ground hot tubs and pools are also subject to removal. In-ground pools are more problematic, not only because they cannot easily be removed but because they may interfere with in-ground easements. It would not be wise to put an above-ground hot tub or pool on an easement.
  • Shrubs and Grass: Bushes, lawn, and other shallow-rooted shrubbery may be planted on easements. Trees and other major vegetation should not be planted on easements. One common scenario: you have an above-ground garden planted on an easement, covering the manhole to the sewer main. Workers regularly access this manhole, working around the plantings. Shrubs are removed only at key areas.