Pictured home: 36-1023 Stevens Rd. Laupahoehoe, HI
We take getting into our driveways for granted. In most places, a home’s front roads are normally owned and maintained by the local municipality. On our island, easements, and flag lots are very common as well.
What is an easement?
An easement is a pretty straightforward arrangement where one landowner allows another to cross their property either for ingress and egress, or to bring in utilities. Affected landowners must formally agree. A legal document describing the agreement should be filed with the Bureau of Conveyances, otherwise a subsequent or disgruntled landowner could revoke the use without notice or other causes.
Easements may also be created by legal action through habitual or prescriptive use. Easements are generally said to be “appurtenant” or to “run with the land.” Hence, they pass to subsequent owners.
These differ from Easements in Gross, which are individual rights normally granted to utility companies and such. They are commonly established for purposes such as stringing electrical lines. At times, Easements in Gross are granted to individuals. When this happens, the easement is extinguished with an event such as the death of the antee/beneficiary. The land area of the easement still belongs to the grantor.
What’s not an easement?
A “flag” lot looks the same as an easement on the ground, but the portion of the property connecting the roadway to the property is actually part of the lot being accessed so it’s calculated in the total land area. Flag lots are created when subdivided so they are usually shown on tax maps. The legal description is the only reliable method of determining access.
Even though tax maps sometimes depict access, they are not the official documentation. These maps are not redrawn every time a change is made. Survey maps should, but often may not, note easements since they are usually of necessity but not a portion of the property. Access by easement should always be noted in the title report.
Who can use an easement?
A notation of “together with” along with a “subject to” noted on the encumbered property should be shown on the title report. I always request a title report for the encumbered/subject to property as well.
Properties fronting public roadways may not specify access. Access is certainly not a detail to overlook. It can, at times, be extremely complicated and involve a group of easements or a combination of public easements, and flag poles. It’s always a good idea to have an attorney verify that your access is completely and legally noted in public records.
Not so EZ
A final word of caution regarding “paper” roads. Title policies are written based on recorded access which may not physically exist on the ground. Before you buy, be careful that a road actually exists. Whether your access is through pastures and gates, down streambeds, along shared roadways, or even a simple right turn off a public roadway, access may not be EZ but it’s always critical to finding your way home!