What is a Positive Easement in Real Estate Property Rights?

I love explaining property rights to my clients - they're fascinating pieces of real estate law that impact so many property owners. Positive easements pop up all the time in residential and commercial real estate, yet many people don't fully grasp what they mean until they're directly affected by one.

Positive Easement: A positive easement gives someone the right to enter or use another person's property for a specific purpose, such as accessing a driveway or running utility lines. This type of easement grants specific privileges to the benefiting party while the property owner maintains ownership of the land.

Understanding Positive Easements in Real Estate

Positive easements create a unique relationship between property owners. Think of them as permission slips that allow someone else to use part of your property in a specific way. The property owner (grantor) keeps their ownership rights while giving certain usage rights to another party (grantee).

Types of Positive Easements

I've seen many types of positive easements in my work, but they typically fall into three main categories:

Access Easements

• Shared driveways between neighbors

• Paths to reach public beaches through private property

• Walking trails through private land

Utility Easements

• Electric company access for power line maintenance

• Municipal water line installations

• Cable and internet service provider equipment access

Solar Easements

• Protection of access to sunlight for solar panels

• Restrictions on neighboring property development that might block sun exposure

Creating Positive Easements

Positive easements come into existence through several methods:

• Express Grant: Written agreement between parties

• Prescription: Long-term continuous use without owner objection

• Necessity: Required for reasonable use of property

Rights and Responsibilities

Property owners must:

• Keep the easement area accessible

• Not build structures that interfere with easement use

• Allow reasonable access during appropriate times

Easement holders must:

• Stay within the defined scope of use

• Not exceed access privileges

• Respect the property owner's rights

Common Issues and Solutions

I often see disputes arise over:

• Exact boundary lines of the easement

• Who pays for maintenance and repairs

• Impact on property resale value

The best solution? Clear communication and written agreements between all parties.

Legal Considerations

Always make sure your easement is:

• Properly recorded with local authorities

• Included in title searches

• Clearly defined in terms of use and boundaries

Practical Examples

Real-world examples make this easier to understand:

• Two homes sharing one driveway entrance

• Power companies accessing backyard electrical equipment

• Farmers crossing private land to reach their fields

Frequently Asked Questions

Q: Can I refuse to grant an easement?

A: Yes, in most cases - unless required by law or court order.

Q: Does an easement lower my property value?

A: It might, depending on the type and extent of the easement.

Q: Can I remove an existing easement?

A: Yes, but both parties must typically agree to terminate it.

Working with Positive Easements

Before buying property, check for existing easements. If selling, disclose all easements to potential buyers. Work with professionals who understand these complex arrangements.

Next Steps

Positive easements can be complex - that's why working with knowledgeable real estate professionals makes such a difference. Bellhaven Real Estate's team can guide you through easement matters, whether you're buying, selling, or managing property with existing easements. We'll help you understand your rights and make informed decisions about your real estate investments.