Drainage Easements

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If you are buying a home, you should be aware of whether the home you are buying has the benefit or burden of an easement. An easement exists when one person has the legal right to use another person's property, as specified in an instrument or provided by implication. Sometimes the benefits of an easement run with a parcel of land. Most easements are trivial, but some can substantially affect the way a homeowner uses property and how he or she expands a home. If you are considering buying a home, one consideration may be whether drainage easements and any other easements could affect your use of the home later. For advice on this issue, you can contact the Boston real estate lawyers at Pulgini & Norton.

Drainage Easements

A property that receives the benefit of an easement on another property is usually referred to as the "dominant estate," while the property over which the easement runs is called the "servient estate." Drainage easements typically run with the land, and they are common in subdivisions. Often, they are recorded in the Registry of Deeds. This type of easement allows one lot to drain storm water onto or through another property or into a common detention pond.

Drainage easements can be public or private. A private easement is usually created and recorded by the developer of a subdivision. A public easement is created by a municipal government in order to install the pipes that allow the water to flow in a more orderly fashion. Often, drainage easements affect owners because they include various limitations on use, such as not blocking the easement or not expanding to block the easement. A prospective home buyer should be aware of the easement holder's right to the easement before buying the home. A drainage easement can limit the right to expand the building, for example. Or it can affect a homeowner's ability to build a shed or other structure.

Although most drainage easements are recorded and part of the design of a subdivision, some drainage easements are prescriptive easements. They are acquired through the hostile, adverse use of someone else's property for 20 or more continuous years. In some cases, "tacking" is used to put several periods of adverse possession together to create a prescriptive drainage easement. Generally, no instrument is recorded in the registry of deeds, which can pose a problem for later buyers of the servient lot.

Similarly, an easement by implication can arise and present an issue for a home buyer. An easement by implication exists when circumstances show that an easement was intended, even though the developer or another person did not record the easement at the Registry of Deeds. For example, if there is no other way for water to drain from one lot, other than across a second lot, an easement by implication may exist.

Generally, whether there is a drainage easement can be determined by conducting a title search. However, there are circumstances in which it may be important to investigate whether there is a prescriptive easement or an easement by implication.

Seek Guidance from an Boston Property Transactions Lawyer

When you buy a home, you should look into whether there is a drainage easement that benefits or burdens the home. At Pulgini & Norton, our real estate attorneys can advise Boston residents on home purchases and sales. We also can assist individuals in Somerville, Braintree, New Bedford, and other cities in Massachusetts. Call us at 781-843-2200 or contact us via our online form for a free consultation.