Easements on Your Property: What You Can Build in One

An easement is a right someone else holds in part of your lot: a utility’s right to run and reach its lines, the city’s right to carry stormwater, a neighbor’s right to cross. Austin describes it as part of your property that a government body or a neighbor can use, build on or change, and in California what an easement allows is set by the terms of its grant, or by the use that created it. So what you may build in one starts with the easement’s own terms and then with the rules of whoever holds it. In Austin, Austin Energy allows a fence in its utility easements if the fence can be removed for its crews and equipment and does not conflict with other utility equipment, but allows no building, pool or other permanent structure there. In Los Angeles, a building permit for work in a public sewer or storm drain easement goes to the Bureau of Engineering, which can require recorded papers and its own permits before it clears the permit.

What is an easement?

An easement is a property right, not a zoning rule: a setback keeps a strip of the lot open because zoning says so, and one strip can be both. The setbacks guide covers the zoning side. California’s Civil Code sets an easement’s extent by the terms of its grant, or by the nature of the use by which it was acquired, and Section 811 lists four ways one ends: when the easement and the land it burdens come to one owner, when that land is destroyed, when the easement’s owner does, or agrees to, something on either property that is incompatible with it, or, for an easement gained by use, when it goes unused for as long as the law requires to gain one by use. This guide has not read Texas’s law on easements; ask a Texas real estate lawyer about one on your lot.

How do you find the easements on your lot?

In Austin, a residential building permit application has to show any drainage easement on the lot, along with the 100-year and FEMA floodplains, and a final plat shows the drainage easements. In Los Angeles, plans for work near a public sewer or storm drain easement show the easement and a cross-section with the pipe’s location and depth, and the Bureau of Engineering can ask for a survey. For a utility or private easement, the document that granted it sets the terms, or, for one gained by use, the use that created it; ask the utility or the city which easements touch your lot, and call 811 before you dig, as the before-you-dig guide explains.

Can you build on a utility easement in Austin?

Austin Energy’s design criteria allow a fence on a utility easement if it can be removed to let its crews and equipment in; a fence that permanently blocks access to its lines and equipment, or conflicts with another utility’s, is not allowed, and Austin Energy may remove any obstruction without fault. No permanent structure, swimming pool or building is allowed on the easement, and pedestals, underground vaults and manholes that crews enter need 8 feet clear around them. Landscaping is allowed if it does not restrict access or conflict with other utility equipment; before planting anything that might obstruct access to existing or future lines in the easement, the owner needs a license agreement from Austin Energy, and pays for any added upkeep it causes. Within 15 feet of overhead distribution lines only trees Austin lists as utility-compatible, generally those no taller than 20 feet when grown, may be planted, and no tree goes within 10 feet of a pole or of pad-mounted equipment, or 5 feet of underground equipment; a tree within 20 feet of underground equipment needs a root barrier at least 4 feet deep, set 5 feet from the equipment. The criteria say final grades should not be changed by digging or filling without Austin Energy’s written approval first, and the owner pays in advance for any change to its lines needed to restore their clearances.

Some of its rules apply beyond the easement. No building, foundation or other permanent structure may sit over its underground lines or within 5 feet of them without its written permission. A pool’s, hot tub’s or spa’s water’s edge stays 10 feet from its overhead distribution lines and from underground equipment such as a transformer or pull box, and 5 feet from underground conduit, and the meter stays 5 feet from the water; if a pool is closer, moving the lines is at the owner’s expense. These are Austin Energy’s rules for its electric lines; Austin Water and other utilities with lines in an easement set their own, which this guide has not read, so ask them.

Can a fence or wall go in a drainage easement in Austin?

A drainage easement in Austin is the easement or right-of-way the city requires for a drainage facility, dedicated to the public when land is developed, wide enough for continuous access to run, maintain and repair it, and reaching the limits of the 100-year floodplain; the part of a lot inside it can still count toward the lot’s area for density and impervious cover. Unless an approved development application allows it, no one may place an obstruction in a waterway, which includes a drainage way, creek or stream and its 100-year and 25-year floodplains, and whoever controls the land it crosses must keep it clear. A retaining wall that helps develop private land must be built on private land and be privately owned and maintained, placed so that the right-of-way is not affected if it moves or fails; only in special cases does the city allow one in a drainage easement, and then under a license or encroachment agreement. A wall no farther from an easement or the right-of-way than its own height falls under Section 13 of the city’s Transportation Criteria Manual. The code read for this guide does not list what else may go in a drainage easement; ask the City of Austin before putting a fence, shed or slab in one.

Can you build over a sewer or storm drain easement in Los Angeles?

Los Angeles sends every building permit that may encroach into the public way to the Bureau of Engineering for clearance, and its code requires a Class A or B permit for work within a public easement. For work in or next to a public sewer or storm drain easement, the Bureau’s procedure decides at one of three levels. If the easement is inactive, the city recommends quitclaiming it, releasing it by deed, and the owner signs, notarizes and records an acknowledgement of the easement and a waiver of damages. If it is active and the work affects it little, the owner records the same two papers, may need a Bureau of Sanitation review, and takes a supplemental A permit for construction inspection. If the work affects it significantly but can be done without harming the city’s pipes, the owner also records the two papers, and the work takes an excavation permit, reviews by the Bureau of Sanitation and the city’s Structural Engineering Group, camera inspections of the pipe before and after, and inspection by the Bureau of Contract Administration; the certificate of occupancy waits until the excavation permit is final and the camera shows no damage. If the work cannot be done without harming a storm drain, the procedure has that storm drain easement rerouted and the pipe moved under a B permit.

Who maintains a shared driveway easement?

In California, whoever owns a private right-of-way easement, or land it serves, has to keep it in repair. Where several owners share one, they split the cost as their agreement says, or without an agreement in proportion to how much each uses it, and an owner who does not pay after a written demand can be sued for the share, in small claims court if the amount is within its limit and otherwise in superior court. Texas’s rules for shared driveways have not been read for this guide; ask a Texas real estate lawyer.

The fence permit guide gives each city’s fence heights, the pool fence guide the barrier rules for a pool, and the retaining wall permit brief the permit lines for a wall.