By Julia E. Nista, Esq.
When selling a property in Western Pennsylvania, one critical aspect of the seller’s disclosure is informing potential buyers about easements that may affect the property. An easement is a legal right for one party to use part of the property owned by another party. Easements can have significant implications for property use, and intentionally failing to disclose them can lead to legal complications and potentially costly consequences for both parties.
What is an Easement?
An easement grants someone the right to use another person’s land for a specific purpose. These rights are often enclosed in the property deed and further recorded with the Register of Deeds office in your county. But sometimes, easements only exist through an individual agreement between property owners, meaning that the easement would not be available through a title search in your county. A valid easement agreement occurs when you enter into an agreement in writing, and the agreement is signed by the person against whom it will be enforced, which is the owner of the land to be used. An owner of real property should ensure the written easement is recorded with the Register of Deeds so that future purchasers of that land are on notice of the easement.
In a Pennsylvania Supreme Court case, Brady v. Yodanza, the Court held that a buyer of land who purchases real property that is expressly (ie: signed and in writing) subject to an easement appurtenant (land that neighbors each other), or if the buyer has notice that the real property is burdened with an existing easement (ie: a prescriptive easement), the buyer will take the land subject to the easement “irrespective of whether the deeds to the dominant landowners expressly grant the easement appurtenant.” Brady v. Yodanza, 493 Pa. 186, 193, (1981). This means that even if an easement is not included in a deed and is not recorded, the easement can still exist and may still be imposed on the buyer of land. Also, if the easement is not in writing and signed, this can also lead to litigation to determine whether a valid easement exists, and oftentimes in such circumstances, an easement will not exist. If you believe your use of another’s land, or demand of another to stop encroaching on your land, is at risk, contact an attorney to help with any litigation issues that may arise.
Below are common examples of easements that could lead to a situation where litigation may be involved.
Common Types of Easements
There are various types of easements that can exist on a property, and each can have different effects. Below are some examples of typical easements on a property owner’s land:
- Mineral Rights Easements: Some companies may have the right to enter a person’s property for the sole purpose of extracting minerals, oil, or gas, which is a prevalent occurrence in Western Pennsylvania.
- Utility Easement: This is one of the most common types and allows utility companies to install and maintain infrastructure like power lines, water pipes, or sewage systems. Buyers need to know about utility easements because they can restrict how and where you build on your land.
- Easement by Necessity: This type of easement permits a third party to cross the property to reach another location. This occurs when a property is landlocked and requires access to a road or public way via an adjacent property. This easement is often implied by law if there’s no other access.
- Conservation Easement: A conservation easement restricts how a property can be developed or altered to preserve natural resources, wildlife habitats, or scenic views. This type of easement is often involved in deer hunting, particularly in Western Pennsylvania forestry and large swaths of land. These easements are often voluntarily given up to the public by landowners but can affect property use and value.
- Easement Appurtenant: This easement benefits a specific piece of land, called the dominant tenement, and is tied to the land itself rather than the individual owner. It’s often seen in situations where a property needs to cross another for access, and the user is generally a neighboring landowner.
- Easement in Gross: This type of easement allows someone to use another person’s property, but this right is tied to the individual or company, not to a specific piece of land they own. This type of easement essentially grants access to a property without the user needing to be an adjoining landowner. Utility easements are examples of an easement in gross, but these easements can occur in other ways such as going to a public pool or buying a ticket to enter someone’s property for an event.
- Prescriptive Easement. A prescriptive easement allows someone to use another person’s property due to the continuous use of that property, without permission, over a specific period of time (usually between 10 to 20 years). It allows the user to continue using the property in a certain way, even if the landowner asks them not to. Generally, a person who is making a claim that they have this type of easement must use the property in an open, notorious, and uninterrupted manner.
Example of a Seller’s Disclosure Form Involving Easements
Generally, in a Seller’s Disclosure Form, there will be a section included in the form that stipulates whether a seller knows of any easements or issues related to the property boundary or use. Below is an example of such a section:
“Do you know of encroachments, boundary line disputes, rights of way, or easements?
Note to Buyer: Most properties have easements running across them for utility services and other reasons. In many cases, the easements do not restrict the ordinary use of the Property, and the Seller may not be readily aware of them. Buyers may wish to determine the existence of easements and restrictions by examining the Property and ordering an Abstract of Title or searching the records in the Office of the Recorder of Deeds for the County before entering into an agreement of sale.”
Legal Effects of Easements in Seller’s Disclosures
Easements can have a significant effect on a property, influencing its value and potential for development. For buyers, an undisclosed easement could prevent them from building a pool or expanding their home in certain areas. Sellers, therefore, must be diligent in disclosing any known easements that are not available through a standard title search. Failing to do so can result in legal issues or even jeopardize the sale altogether.
An intentionally undisclosed easement could be considered a material defect of a property in a home sale. Buyers who discover a material defect in a recently purchased property — especially if they believe the issue existed before closing and the same issue was not disclosed by the seller — may file claims under common law or statutory law. In Pennsylvania, a claim can be made under the Pennsylvania Real Estate Seller Disclosure Law (68 Pa.C.S. § 7311) within two years of the closing date. Material defects to a property include “[l]egal issues affecting title or that would interfere with use and enjoyment of the property” and are thus subject to a seller’s disclosure rules. Pennsylvania Real Estate Seller Disclosure Law (68 Pa.C.S. § 7304). An undisclosed but known easement falls under this category of disclosure.
Contact an attorney if you need to set up a valid enforceable easement. If litigation arises due to issues with easements, you may need to contact a real estate attorney to help resolve your legal issues.
For more information about how easements impact the purchase or sale of real estate, and to ensure your easement is properly formed, call us at 412-209-3200 or email jnista@palawfirm.com to schedule a free, no-obligation consultation.