Imagine that you’ve found the perfect starter home on a charming plot of land. You’ve acquired the property, you’re starting to unpack, and you’re looking forward to doing some nesting in your new house. Then, you see one of your neighbors driving across your property on the way to run errands. A little frustrating, right? When you begin looking through the property records, you discover that there’s an easement on your property. Your neighbor needs to cross your land to reach his own property, and it’s his right to do so. While easements are a confusing aspect of real estate and property law, here’s what to know if you’re dealing with an easement on your property.

What is an Easement in South Carolina?

An easement gives a person or an entity a legal right to use someone else’s property for a stated purpose. This doesn’t mean that your neighbors have free rein to use your land. They’re able to access your property but not possess it. However, it’s not quite as cut-and-dried as that. Different kinds of easements have different legal ramifications.

Easements by Prescription in South Carolina

An easement by prescription (also known as a prescriptive easement) are implied easements that are granted after a dominant estate in a continuously hostile and open manner beyond the statute of limitations prescribed by state laws. Prescriptive easements also don’t require exclusivity, unlike adverse possession.

Before an easement by prescription becomes legally binding, they hold no weight and can be broken if the homeowner takes the proper actions to protect their rights of ownership.

Easements by Necessity in South Carolina

Easements by necessity differ from those by prescription because they are granted when someone’s property is landlocked by surrounding parcels of land. An easement by necessity also assumes that this landlocking of property happened by accident and that at one time, the surrounding parcels of land were joined together or under the same ownership.

Because these are by necessity, they are implied easements that don’t require being in writing to go into effect. It’s also implied that they are lawful as a result of circumstance, meaning that one party has no choice but to make use of the other’s land. These easements can be terminated when the need to cross the owner’s land no longer exists.

Grant of an Easement and Reservation of an Easement

Easements by grant or by reservation are two of the most common methods of creating an easement. An easement by grant is one party creating an easement expressly for its transfer to another party.

An easement by reservation is one party creating an easement that is reserving the right to that easement in property that is being transferred.

Easements Referenced in a Deed

If a Deed of Subdivision or a Deed of Conveyance makes reference to an easement, it’s safe to assume that the easement has been created and is in effect, right? Wrong. While a plat is frequently enough to establish an easement, that’s not always the determining factor. In cases where the plat or deeds are not enough to establish an easement, a trial court will employ the use of the eight-factor Cheney test to determine whether an easement has been implied.

Importance of Access to a Public Right-of-Way

A right-of-way differs from an easement in the sense that an easement applies to one party and a right-of-way applies to the public. A right-of-way grants access to anyone who may need to travel through your land. For instance, if you recently purchased waterfront property on a public beach, it would be unlawful to construct a fence around your land that would prevent the public from accessing that beach. In this case, a right-of-way would be assessed to keep the land open for access.

How to Establish an Easement in South Carolina

The primary ways easements are established are through prescription, necessity, conveyance, agreement, and condemnation. The ways in which the easement may be established will vary from case to case but generally follow similar guidelines once an easement has been established.

Proving an Easement

Proving an easement is (hopefully) a fairly straightforward process that’s been laid out in a deed or other supporting documentation. If there is no mention of an easement in a deed, it becomes a little more complicated to prove its existence.

Factors for proving an easement include necessity (in the aforementioned terms of landlocked parcels, particularly), use extending beyond the local statute of limitations (which will vary depending on the state), and a specific use of the land, most frequently for crossing. In certain cases, an individual seeking to gain an easement might have to state why they were using the land and why they believed that had a right to it as well.

A Professional Opinion

Easements are among the more complex legal concepts when it comes to property law. They can be tricky to navigate without some expert advice and shouldn’t be undertaken lightly. If you believe you’re dealing with an easement on your property or if you’re seeking the establishment of an easement, contact the legal professionals at Watts Law Firm PA to gain expert counsel on all things easement.