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What is the difference in a positive and negative easement?

| Oct 20, 2016 | Real Estate Transactions |

There are myriad ways in which the process of buying real estate and the continuing ownership and development of that property can go sideways if the buyer doesn’t know which potential pitfalls to look out for. For this and many other reasons, it almost always wise to enter into home buying with the guidance of someone with both the experience to know what to watch out for and the knowledge base to course-correct effectively when it is needed. One such issue that can throw a wrench in the works of buying a home is the possibility of easements on a property.

An easement in real estate is essentially an agreement about the use of property that can take authority over the owner’s rights. Easements generally come in two varieties — either an affirmative easement or a negative easement. An affirmative easement allows the holder to do a thing as it relates to a property. A negative easement restricts the owner from taking certain actions with the property.

Let’s assume that you have just bought some land and it is near the edge of your town. In a positive easement scenario, the town may retain the right to expand the width of its roads a certain number of feet outward, even though you own the land.

A negative easement may mean that even though you bought the land intending to build a giant dinosaur theme park, you have come to find you are not allowed to build structures that are higher than 16 feet above grade. In this scenario, you might choose to build smaller dinosaurs or scrap the dream of the dinosaur theme park, opting instead to build a little league baseball field (in either case, you’ll want to check zoning laws, which are a different thing entirely).

As you can see, just because you think you’ve found the deal of the century, it pays to have a member of your buying team that can help you spot problems before they even become problems, and maybe even things that could become problematic long after the property is successfully purchased. If you are considering buying real estate, the guidance of an experienced attorney can help you get what you really want and need, instead of only looking for a good deal.

Source: Findlaw.com, “Affirmative and Negative Easements,” accessed Oct. 20, 2016

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