Can You Build on a Property or Utility Easement?

Building on a property or utility easement can be complex. There are several factors to consider when determining if construction is allowed and what restrictions may apply. This comprehensive guide examines the key issues around building on easements so property owners can make informed decisions.

What is a Utility Easement?

A utility easement gives utility companies, local governments, or other authorized parties the right to access a portion of private property. It allows them to install, maintain, repair, or replace utilities like:

Electric lines
Gas pipelines
Water pipes
Sewer systems
Telecommunications cables

The easement creates a permanent encumbrance on the property’s title. The landowner retains ownership, but the easement holder has specific rights to utilize that area.

Utility easements are usually identified on property surveys or plats. They often run along the front, side, or rear lot lines. But they can also cut across parcels in less predictable ways. The recorded easement document details the exact location and permissible uses.

Why Do Utility Easements Exist?

Utility easements serve some important public policy goals:

They allow centralized, efficient distribution of essential services. Without easements, each property would have to generate its own electricity, water, etc.
They prevent disruption of utilities that cross private land. Landowners cannot block access or demand removal of lines or pipes once installed.
They facilitate maintenance and repairs to provide reliable service. Companies don’t need to negotiate temporary access each time.
They help avoid legal disputes between property owners and utilities. The parameters for access are pre-defined.
They enable utilities to be installed in logical, cost-effective locations without having to purchase the land.

So while easements restrict landowners in some respects, they also provide systemic benefits to the community.

What are the Key Legal Principles?

When it comes to building on easements, several legal principles come into play:

The easement terms govern. The rights and limitations are spelled out in the recorded easement document, which prevails over other laws.
Permanent structures are usually prohibited. The easement holder cannot be prevented from utilizing the defined area. Large buildings or other permanent improvements typically violate this right.
Only “reasonable” use is allowed. Landowners retain the right to make use of the land provided they do not unreasonably interfere with the easement or impede its intended purpose.
The easement holder can require removal of obstructions. If a landowner constructs unauthorized improvements, the holder can demand they remove them and restore the easement.
Local permits cannot supersede easements. A municipality cannot override the terms by permitting construction that conflicts with the easement.

Understanding these basic principles provides context for the practical considerations around building on easement areas. The specifics depend on the situation.

What Improvements Are Generally Allowed?

While permanent structures are usually prohibited on easements, some minor improvements may be permissible:

Fences – Provided they include gates or access points to accommodate the easement holder. The gates must remain unlocked.

Sheds or small storage buildings – As long as they are portable and can be relocated if necessary to access the easement. Some jurisdictions prohibit any structures.

Driveways or parking areas – They should be designed not to obstruct equipment or crews performing easement work.

Low-lying landscaping – Plants, shrubs, or flowers are generally acceptable if they do not impede access. Mature trees are often prohibited.

Low retaining walls – Must not prevent access or maintenance by the easement holder.

Sprinkler systems – Should be installed with valves to allow sections over the easement to be shut off.

Filling or grading – Cannot alter the topography in a way that impedes easement rights.

The key is that any improvements must be easily removable and not interfere with the intended use per the easement terms. Consulting with the easement holder before installing anything is wise.

Can I Build a House on a Utility Easement?

Constructing a house, barn, garage, or other permanent structure is almost never allowed on a utility easement. It violates the basic principle that the area must remain accessible. While building over an easement is not inherently illegal, it is extremely risky due to several factors:

The easement holder may require removal of any unauthorized structures at the landowner’s expense.
Essential utility work will be far more difficult and disruptive with a building in place.
The landowner may be liable for repair costs if utilities are damaged during construction.
Insurance coverage may be limited or denied for a building within an easement.
Resale value may decrease since future buyers will inherit the headaches.

In rare cases, a landowner may attempt to build on an easement and seek formal consent from the holder. Permission is unlikely since most utilities are unwilling to surrender their permanent rights. But if granted, the authorization should be memorialized in an amended easement document.

Building within an existing easement should generally be avoided due to the safety, legal and financial risks.

What About Building an Addition or Patio?

Home additions like sunrooms, attached garages, and covered patios fall into a gray area when easements are involved. The concerns are similar to building a brand new structure:

It can obstruct access needed by the easement holder.
Foundations, roofing, electrical, and plumbing may complicate maintenance and repairs.
The owner may have to bear costs related to removing or temporarily supporting the addition to accommodate easement work.

However, smaller-scale additions connected to an existing building sometimes receive approval, subject to conditions like:

Maintaining sufficient clearance from utilities.
Using construction techniques that make dismantling easier.
Assuming liability for any problems or costs associated with the easement.

Close coordination with the easement holder is essential for additions. An encroachment permit may be required. Approval is more likely if the design poses minimal interference.

Building over an easement is generally inadvisable. But pragmatic accommodations are sometimes negotiated for minor additions.

What Happens if I Build on an Easement?

Property owners who knowingly build permanent structures on utility easements are taking a calculated risk. Several adverse outcomes are possible:

The easement holder can file a lawsuit demanding removal of the obstruction. If the owner refuses, a court can order demolition.
Local permitting offices may issue stop-work orders and withhold certificates of occupancy. Permits issued contrary to easements have no legal force.
Utility companies may withdraw services until the violation is remedied.
The easement holder can conduct maintenance that incidentally destroys the unauthorized construction.
The owner may be billed for costs related to removing or working around the obstruction.
Insurance companies often deny coverage for buildings improperly encroaching on easements.
Future buyers typically shy away from properties with easement violations in place, affecting marketability.

In rare instances, the easement holder may opt to pay the landowner to relinquish or relocate the easement rather than force removal of a building. But counting on this outcome is extremely speculative.

Construction that interferes with easement rights should be rectified as soon as possible to avoid escalating complications. In many cases, unfortunately, the only real option is to remove the offending structure altogether.

How Are Utility Easements Relocated?

When a utility easement impedes plans for property development, landowners sometimes wish to relocate it. Easements can be moved under certain conditions:

The easement holder agrees to relocation. The owner requests their consent to apply for relocation.
A new easement area is platted and recorded. The new location is mutually agreed upon by the holder and owner.
The property owner pays costs. These may include surveys, plat recordings, and physical relocation of utilities.
Utility line relocation is approved. The relevant companies conduct studies to approve shifting buried lines.
Local authorities grant permits. Municipalities must approve easement relocations and utility work within their jurisdiction.
The original easement is formally vacated. After relocation, the initial easement must be legally dissolved.

Easement relocation involves extended coordination, apart from the normal building permit process. The property owner initiates the sequence of events and typically bears all costs. Even still, there is no guarantee the easement holder will accommodate relocation. Each situation depends on local factors.

Can Easements Be Built Over via Bridging?

For properties with broad easements or irregular borders, bridging or spanning over the encumbered area is occasionally feasible. This avoids placing permanent structures directly on the easement. Spanning is only possible using specialized designs and construction:

Elevated foundations – Structures are built atop platforms or piles situated at the easement edges.
Cantilevered projections – Overhanging segments are anchored to foundation walls outside the easement.
Detached buildings – Free-standing structures are positioned near enough to connect to the main building over the easement.
Extended entryways – Covered walkways, tunnels, or enclosed bridges link buildings across the easement.
Height clearance – Building features must maintain sufficient height to allow equipment access as needed by the easement holder.

These strategies require creativity and careful planning tailored to the property layout and easement holder’s specific constraints. Bridging over an easement generally involves higher costs than avoiding it altogether. Feasibility depends largely on the parcel shape and easement configuration.

How Can I Modify an Easement?

On rare occasions, modifying an existing easement’s boundaries or terms is an option:

Partial release – The holder agrees to vacate only the portion needed for construction, leaving the remainder intact.
Substitution – A replacement easement is provided elsewhere on the property in exchange for building on the original.
Limiting – Specific prohibitions are added to the easement terms, rather than fully releasing the area.
Temporary suspension – The holder grants a defined exemption from easement rights to enable construction.

These options involve extensive negotiations with the easement holder, plus formal recording of amended easement documents. Consent for modification is difficult to obtain since utilities are reluctant to relinquish rights. But partial solutions are sometimes possible.

Are Utility Easements Ever Abandoned?

When a utility company permanently stops using an easement, questions arise regarding continued encumbrances on the property. There are two ways inactive easements can be dissolved:

1. Voluntary termination – If the easement holder formally relinquishes rights and records documentation to vacate the easement, the property title is cleared. However, utilities rarely take this step voluntarily.

2. Forced abandonment – If a property owner can demonstrate non-use for an extended statutory period (often 20+ years), a court may declare the easement abandoned and extinguish it over the holder’s objections. But this is challenging to achieve.

Since easements are meant to provide permanent rights, the holder is under no obligation to relinquish their future interests should they stop actively using it. Unless utility infrastructure is fully removed, forced termination of inactive easements is an uphill legal battle in most cases.

How Do I Determine If There’s an Unidentified Easement?

In some situations, a utility easement may exist on a property even if it does not appear in the chain of title or survey documents. This often occurs when:

Ancient easements lack proper records.
Incorrect or ambiguous legal descriptions were recorded.
Plats, deeds, or easements have gaps.
Informal easements were agreed to but not formalized.

Warning signs of a potential unidentified easement include:

Visible utility equipment or metering onsite.
Underground lines marked by aboveground stakes.
Service providers referencing rights not shown in documents.
Neighboring lots show corridors that continue across the parcel.

Resolving uncertainty over unrecorded easements requires carefully researching utility maps, municipal records, permits, and adjacent properties. In worst cases, quiet title litigation may be necessary to determine whether an implied or prescriptive easement exists. Taking the time to confirm easement status is critical before constructing improvements.

Key Takeaways

Permanent structures are almost never permitted within utility easements, while minor improvements may be allowed in some circumstances.
Building over an easement without authorization carries significant legal, financial and insurance risks.
Easement relocation is possible but complex, requiring consent and cooperation from the easement holder.
In limited scenarios, bridging techniques can physically avoid easements if designed and constructed properly.
Formally modifying or terminating easements is extremely difficult unless the holder willingly agrees.
Unidentified easements require research to confirm if utilities have rights on a property that are undocumented.

Property owners should tread cautiously before building on utility easements. While the restrictions may seem unfair, they exist for important reasons. Careful planning to design around easements, relocate them, or span over them is key to balancing landowner and public interests. With creativity and patience, building projects and easement obligations can often co-exist. But easement encroachment should not be approached lightly.

Frequently Asked Questions

Below are some common questions about building on utility easements:

Can I build a pool on a utility easement?

In most cases, installing an in-ground pool within a utility easement is prohibited. The excavation and permanent structure interfere with the easement holder’s access rights. Small temporary above-ground pools may receive approval if they can be taken down when necessary. But permanent pools are generally incompatible with easement areas.

What if my home was built on an easement unknowingly?

If a home or other structure was built on a utility easement by a previous owner who was unaware of its existence, the situation is problematic but not hopeless. The easement still legally prevails, so the holder could demand removal. However, if the encroachment does not cause issues, some holders may tolerate existing buildings and “grandfather” them in. Documenting their consent is wise.

Can I build on a sewer easement?

Sewer line easements fall into the same category as other utility easements. Structures would obstruct access for installation, maintenance, or repairs. The sewer authority is unlikely to approve permanent construction within a defined sewer easement. Small sheds or fences may be accepted if they do not meaningfully interfere. But buildings should be avoided.

What happens if I build and the utilities need access?

If a landowner builds within an easement and utilities later need access for repairs or upgrades, the owner is obligated to accommodate them. This may entail removing or readjusting the construction at their own cost and disruption. Utilities are not responsible for working around unauthorized improvements in their right of way. The property owner assumes this liability by building there.

Can I build over an easement if utilities are aerial?

For above-ground utilities like power or phone lines, buildings generally cannot encroach on the required clearance zones surrounding the poles and wires. Rights associated with aerial easements depend on the defined boundaries, not just the visible equipment. So construction under or near overhead lines must be approached carefully and approved by the easement holder.

Conclusion

Utility easements place limits on property improvements to facilitate essential public services. While often frustrating for landowners, the restrictions serve valid public policy goals. With careful planning, many building projects can be adapted to fit harmoniously within or around easement areas. But directly constructing permanent structures on easements is rarely a wise or permissible course of action. By understanding easement holders’ rights, seeking creative solutions, and respecting the boundaries, property owners can navigate easement-related obstacles successfully.