Rosie on the House: The difference between easements and setbacks

Question: What is the difference between easements and setbacks?

Answer: These are two aspects of your property that you can’t access visually. Both easements and setbacks are defined by some sort of regulation or legal document.

Easements

An easement is a legal conditional right to use the land by some entity other than the landowner. There are generally four types of easements: utility, private, prescriptive and a thing called easement of necessity.

Utility easements are perhaps the most common in developed areas. This allows a utility entity to traverse your land to benefit you and your neighbors. These are most commonly used for water, sewer, power, telephone, community drainage, or cable companies. If you own a lot in a subdivision, you most likely have a utility easement on or close to your property. They can be underground utilities or overhead. The wires on the poles in your yard are a visible indication that some form of easement is there.

Private easements are where a property owner grants someone or something the right to utilize a portion of their property for some purpose. This might be for a utility line or in some more rural settings, granting access for one person to cross your property for some reason or purpose.

Easements by necessity are another form. As with private easements, these might be more common in more rural settings. An example of this type of easement would be if access to your property can only be obtained by traversing someone else’s land. The law grants people the right to access their property. If this traverses your property, you cannot interfere with your neighbor’s rights. Reasonable neighbors can come to a resolution on how best to make that access happen.

Prescriptive easements sometimes referred to as adverse possession can occur in a variety of land ownership types. This easement is where someone has been using someone else’s land openly and continuously over a period of time. In Arizona, that time frame is usually 10 years. An example might be a fence installation. If the fence was incorrectly located and took up a piece of another property, then this might be an area where prescriptive easements might happen.

How do you know if there is an easement on your property? The best way to check is to look through your title report or recorded deed. With prescriptive easements, a survey might be needed. Your realtor or attorney can be of assistance here.

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Setbacks

They are generated as part of a zoning ordinance. A setback generally defines a perimeter around your land that you cannot build in. Generally, the purpose of a setback is to establish a consistent appearance within a particular zoning designation. This form of continuity helps to establish the character of a neighborhood. Setbacks also help with affording natural lighting between buildings.

You will find setback requirements in all land use categories covered by the zoning ordinance. Each zoning designation has its own setback requirements. In residential uses, setbacks cover how close you can build in your front yard, side yards, and rear yard. Your local municipality, or county planning and zoning department will have information regarding what effect setbacks have on your property.

Depending on your local ordinances, aspects of your home such as overhangs, patios without a roof, and of course landscaping, can be part of the setback area. You also may be able to erect or build a shed structure in certain setback areas. Sometimes the shed structures can be on a foundation, but usually not. You need to check with your local planning and zoning departments before you start the process of planning your project. This is very important as each zoning designation will have its own setback requirements, and every municipality and county has different requirements for its own zoning designation. So, what works for your brother in Peoria may not work for your friend in Tucson. Also, if you have an irregularly shaped lot, the setbacks rules could be complicated.

Most local governments have a process in place to allow utilization of a portion of the setback area known as a variance. This is a process whereby you can apply to use the setback area and typically based on necessity, or hardship, you may be granted use of the setback. These processes can be time-consuming and expensive. The wisest move is to discuss your ideas with the local governing entity, and you can best gauge your likelihood of success before you undertake the whole process.

Q: How important is it to define the easement and setback on a property?

A: It is very important. Not checking out your property for both easements and setback requirements can be expensive and frankly, downright horrible. Check these things out as part of your due diligence before purchasing an existing home or piece of land. I have heard examples of homeowners who bought an existing home that was constructed partially in a setback. This was discovered when the new homeowner wanted to build an addition to the home. The short answer is they were not allowed to. Structures built in setbacks or on easements without a variance or permission (always get permission in writing), may be required to be torn down. We have seen it happen. You may be liable for damages as well.

Check your title report, local municipality, your realtor, designer, or contractor before you get in too deep. This time is well spent and can save you a lot of heartache and money. The invisible lines of easements and setbacks can seriously modify the plan you have in your head for that addition, whatever it may be. Don’t ignore them.