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It’s said good fences make good neighbors, but in the majority of settings where that’s not possible, the next best thing for real estate investors and homeowners is to know the rules of ingress and egress for their particular situation.
Simply put, ingress means the right to enter your property and egress is the right to exit from it. Normally, we’re talking about access to a public road or other common areas. The most obvious access is when the property touches the road, but it’s not always that simple.
Many private developments, gated or not, can leave a home with no access to a public road. For instance, golf course settings come to mind here. As this entry in The Law Dictionary notes: "Proving ingress and egress for the homeowners usually involve private roads within the development that lead to a public street. The private roads rely upon easements to provide access over other people’s property."
Ingress, egress, and easements
Easements are a critical element to understand when it comes to ingress and egress. Most property owners are familiar with the general concept. It’s what gives the utility companies and public agencies legal access to run service lines and sidewalks through private property.
The Legal Information Institute (LII) at Cornell Law School says Aan easement is the grant of a nonpossessory property interest that grants the easement holder permission to use another person’s land."
A commonly used legal term here is an "easement appurtenant," which means the easement involves one piece of land deriving benefit from another. As the LII entry says, "If an easement appurtenant is granted, it involves two pieces of land, where one serves as the servient tenement that bears the burden, and the other the dominant tenement, which benefits from the grant of the easement and has permission to use the servient land in some manner."
There also are affirmative easements and negative easements. The former gives you the right to do something, like use a private road as egress traffic through someone else’s property. A negative easement prevents something from happening in that easement area, like your neighbor putting a tree line between your house and that lake view.
Things can get uneasy without a negotiated easement
Easements can be negotiated narrowly or broadly, and they can even exist without any negotiations at all. For instance, there are implied easements.
"An implied easement is an unrecorded easement in favor of one owner by law when the easement is necessary, such as for light, air, or access to a land-locked parcel. This is a fancy way of saying that it is an easement that is created by the courts.”
That’s directly from PrepAgent Real Estate Exam Prep. If it’s something that real estate agents need to know, so should the well-informed property investor. This is something that can pop up when, say, an easement has long ago been granted to a large piece of property and it was later subdivided without new easements being recorded by the county for each new parcel.
There are a lot of other types of easements. Real estate investors on the prowl also might run into a utility easement, for example, or an easement agreement for stormwater systems or public trails. Conservation easements are also increasingly popular.
But let’s get back to egress and ingress.
Parking and driveways deserve a second look
Access to driveways and parking is where the rubber typically meets the road. For instance, a new homeowner or investor might assume they have the right to use the same driveway or parking in a spot on the neighbor’s land that the previous owner had used for many years.
They well may. That’s legally called a prescriptive easement, which means that access easement was acquired without permission of the owner but through continued use. State laws vary on the time periods involved, and without written, recorded easements, this can be murky legal waters.
Here’s an Indiana case that shows why including ingress and egress -- and in this case the right to park -- should be explicitly researched, and ideally, included, in any property deal. Courts rely on precedent, so it’s worth reading this case study to see what happened here. Hint:15 years of free parking didn’t change the outcome in this fight over that prescriptive easement.
Easements aren’t always forever
It’s also worth noting that easements aren’t necessarily forever. For instance, if the land involved was abandoned, or the reason for the easement in the first place ceases to exist for other reasons, it can be terminated.
If you do buy a property that requires an easement for access and are told there is one, make sure you see it with your own eyes from the public record. An unrecorded easement doesn’t carry remotely the weight of a written easement when it comes to egress rights.
As The Law Dictionary entry notes, "Failing to record an easement could result in the loss of a property owner’s rights to ingress and egress in the event of a sale or transfer of ownership of either parcel."
So, buyer beware. Determine if there’s a specific ingress and egress easement signed and sealed and in place if there’s any question.
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