From the Real Estate section of How You Can Avoid Legal Land Mines by Joseph S. Lyles (2003).
Sarah and Bob bought a house located in a subdivision which was developed three decades earlier. Their lot was one of the last two created and built upon. The sewer line from their house was out of sight and thus out of mind. They didn’t talk about it and the seller didn’t volunteer any information about it.
Unfortunately, the sewer line presented three major problems. First, it was unsound and began to collapse causing backups. Second, it was not legally connected to the public sewer agency’s system and wasn’t in compliance with its specifications. And third, it passed underground beneath their neighbor’s concrete driveway.
A major issue arose when Sara and Bob wanted to replace the old sewer pip and the neighbor did not want his driveway torn up. The neighbor’s deed made no specific mention of the sewer line or any easement for it.
What is an easement? An easement is a liberty, privilege or advantage which one may hold in the lands of another. The holder of an easement has the right to use a tract of land for a special purpose, but has no right to possess and enjoy the tract of land.
Although most easements are created by written language in a deed, they may also be created by the way the land was subdivided and/or used. The courts create easements to prevent lots from being landlocked. The law assumes that all landowners should have some means of access to their land. If a particular roadway has been used continuously for 20 years or more, the courts will hold that an easement was created by use. Thus, even though the adjoining landowners who used the road never paid any money to the owner of the tract over which the roadway ran for the easement, the courts will declare that such an easement exists nonetheless.
Although Sarah and Bob did not have a piece of paper that specifically granted them the right to maintain a sewer line across their neighbor’s land, a judge would likely hold that they did in fact have the right because of the circumstances. However, they would still have to replace the pipe and meet the requirements of the public sewer agency for connecting to the public sewer system, and any disturbance of the neighbor’s property would have to be set right at their expense.
One way of viewing easements is that the law of easements is really just the application of common sense. We all live in interdependence with our neighbors (Except perhaps in the Alaska bush) and there has to be some cooperation of adjoining landowners, even it if imposes somewhat on the exclusive use and possession of their land. Without easements our modern civilization, with its dependence on utility systems, transportation systems, and free commerce, would grind to a stagnant halt.
The Lesson: Adjoining landowners may have limited rights to cross each other’s property with a driveway or utility , even if no legal paper specifically grants that right. Whenever you purchase real estate explore the status of such easements and rights-of-way.