Blog Real Estate

One day your next door neighbor approaches you and asks you for a right-of-way over your property for a driveway to her house. Should you say, yes, no, maybe or I don’t know? As with most legal issues, the answer is “it depends” In this case it depends on the terms and conditions affecting the right-of-way, which is one form of an “easement.”

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.

In making your decision on whether grant the easement, there are at least ten (10) questions that you should consider, negotiate, resolve and then reduce to writing in a recordable easement agreement between you and your neighbor:

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 the benefited property owner 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 the benefited party or will it be shared with the property owner or others?

Will the easement last forever or will it be temporary?

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?

Has your bank or mortgage holder consented to the easement (required in Maryland for the property owner to prevent triggering the mortgage holder calling the loan due or the easement being wiped out by foreclosure on the property owner’s mortgage)?

Do you have covenants on your title or zoning restrictions that would be violated by the driveway over the easement area?

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 and can adequately protect your interests in the easement agreement.