Gerner & Kearns Co., L.P.A.

Understanding easements in Ohio and Kentucky

When you purchase commercial or residential real estate, considering all possible angles can help you avoid mistakes and get the most out of your investment. One issue to consider is whether the property comes with an easement and how that can affect your use and enjoyment.

An easement gives someone a specific limited right to use part of another person’s property in a certain way. Depending on the location of the easement, it can benefit you or your property or alternatively, it can limit your use of your land. Therefore, it is important to check for the existence of easements and determine if they would be a benefit or a burden when you buy the land.

How easements come to exist

Most often, there will be a written agreement that memorializes the easement, either separately or as part of the deed. Easement agreements are most often found in the County Recorder’s office. However, in some cases, an easement can be implied or can exist solely through necessity. For example, if the only way to get to a neighboring lot is through your land, an unwritten easement may exist to allow passage through your land to access that lot. If you can see that property is being used by someone, but you cannot find a written agreement, you should make an independent inquiry. There is the possibility that an easement by implication or necessity may exist.

In other cases, an easement can arise if a property owner continues to allow a specific type of use for a sustained period of time. In certain situations, Ohio and Kentucky law may allow a prescriptive easement, akin to adverse possession, when the use in question occurs openly so that the property owner could easily know about it and, without permission, the use lasted continuously for at least 21 years in Ohio and 15 years in Kentucky.

Common uses for easements

The most common easements are for access, utilities and parking, but any use can be permitted with an easement. Easements can allow two property owners to share a driveway. An easement may also be used to permit a private water line to cross over one or more properties. Also, utility companies typically have easements to place pipes, wires and other equipment on private property. Both Ohio and Kentucky laws also contains other provisions specific to uses for public purposes.

Easements can be very unique and affect how you may use your property. For example, an easement can prevent a property owner from building in a way that restricts the view from a different property. Similarly, property may be affected by a conservation easement which may prohibit any type of development whatsoever.

Before buying real estate, it's always a good idea to know whether any easements encumber the property. An experienced real estate attorney can help you conduct a thorough property record search to uncover and explain any such encumbrances.

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