News

There is an easement on my property, what should I do?

You have found the perfect piece of land but learn that there is an easement on the property. By looking through your deed you learn that a neighbor, through easement rights, has access across a designated part of your lot. This easement may restrict you from building and obstructing their path of access.  What does this mean for you?  If you purchase the property does the easement stay? Can it ever be terminated? What are the restrictions or limitations of building and improving your land?

We have put together the ​most important things that you need to know regarding easement rights in Wisconsin.

What is an easement?

An easement gives legal rights to someone to use your land for a specific purpose.

What are some common types of easements?

• Utility Easement – It allows a utility company or local municipality to access your property for things such as power lines, water lines, utility boxes, etc.
• Private Easement – Private easement rights are granted to an individual. A property owner might grant a neighbor access to a body of water through their property. If considering purchasing a property with this type of easement, the potential buyer should carefully review the document containing the easement language as sometimes there can be limits on what the landowner can do near the easement area.
• Easement by Necessity – If a property owner is landlocked they cannot be denied access to their property.
• Prescriptive Easement – This is an easement for the use of property for a specific amount of time. It varies by state, but there can be regulations regarding the length of time a person can use the easement and the possible requirements to pay a portion of property taxes.
• Public Easement – A public easement grants the use of an area of property for public use.

What is the difference between an appurtenant easement and an easement in gross?

An appurtenant easement applies to the land, meaning that if the landowner sells the land, the easement remains with it.

While an easement in gross gives rights to an individual for as long as the owner owns the property. The easement belongs to the person rather than the land, so if the land owner sells the land or easement owner passes away the easement expires.

Affirmative Easement vs. Negative Easement

An affirmative easement, also known as a positive easement, grants permission for land to be used for a specific purpose. Without this type of easement an act may be considered trespassing or nuisance.

Examples of affirmative easements might include:

• Utility access for water, power lines, septic systems
• Right-of-way access to a neighboring property
• Access for hunting, fishing, or other recreational use

A negative easement is a restriction placed on the land. With this type of easement, there is an agreement that something ​will not be done on/with the land.

Examples of negative easements:

• Restricting building or construction (most times in order to preserve the easement owner’s view)
• An easement like this may want to preserve a lake or mountain view

What are some restrictions that an easement can have?

Unfortunately, easement rights may come with restrictions regarding construction, fencing or building setback requirements beyond the particular local ordinances.

Can easement rights be terminated?

An easement may state that it will expire due to a certain event.  This is common for personal easements that would expire upon the passing of the landowner or easement holder.  Easement rights may also be void if no longer necessary. A common example is an easement that may have been established a long time ago for access to a water well. If the well is no longer in use, the easement would be void as access to that well is not necessary.

Do easements expire?

It is a common misconception that easements are indefinite but Wis. Stat. § 893.33(6) limits the enforceability of easements for a period of 40 years after the document referencing the easement has been recorded.

Do easements affect property value?

An easement will not typically have a negative affect on property value unless it severely restricts the use of the property.

If you have concerns about the resale value of the property with an easement it would be a good idea to do some research on what similar properties with and without an easement rights similar to yours, have sold for. 

In your research you should be able to determine right away if the easement has impacted resale value. For instance, an easement may have no affect on value in a subdivision where many properties have the same type of easements.

Where can I find the details of my easement rights?

Easement rights will be described in detail on your property deed in the closing paperwork. If you have not closed on your property yet, your realtor can request a copy of the title report that will describe the easement that is on your property.

You can also contact your local County Clerk’s office for a copy of your property deed. The appropriate charge will be requested to obtain these documents.

Do I need an attorney to assist with my easement?

If you are purchasing a property, be sure to look at whether there are any easements affecting the property. If you are unsure about any language, or the easement itself, DeWitt's real estate attorneys are happy to review the documents for you.

If you are looking to establish an easement on a Wisconsin property, it is best to have an attorney draft or review your documents before submitting them.

If you have any additional questions regarding easement rights in Wisconsin please contact one of our DeWitt attorneys.