What is an Easement Agreement?
A prevalent form of limited use of an estate in land is an easement agreement. As defined by law, an easement agreement is "a right acquired by grant, reservation, prescription, or condemnation to use another’s land for a purpose inconsistent with the general property rights of the person who owns the land." In even simpler terms, an easement agreement is a legal right to use another property for a specific purpose.
Real estate companies and owners often use easement agreements to grant a right or license to the holder of an easement agreement to do things on the real estate that would otherwise be a trespass in the absence of an easement agreement. These are very common in the real estate industry. For example , electric companies may have easement agreements with property owners to have the right to access real estate for their power lines and utility poles located on the subject property. Property owners may also grant easement agreements to other property owners for driveways or other common driveway rights and utilities.
Many times, an easement agreement will be expressed in a written instrument that describes the affected real estate. Most real estate companies and owners should ensure that any material easement agreements affecting their real estate are recorded against the subject property at the appropriate government office so that third parties can locate the easement agreements with relative ease and comfort in the event such discussion of the easement agreement is needed.
Easement Agreement Types
The most common types of easement agreements are: easements appurtenant, easements in gross, and prescriptive easements. There are other, less common types of easements, which will be discussed in a separate blog post.
Generally, a property owner or tenant must own property adjacent to the property burdened by the easement for the easement to be appurtenant to the use and enjoyment of the ruled property. Appurtenant easements "run with the land," meaning that any transfers of the property are subject to the easement agreement, and the burden of the easement runs with the land burdened by the easement.
Easements in gross are available to a party that does not own adjoining land. Generally, easements in gross are created for the benefit of the person holding the easement (the "grantee"), rather than for the benefit of a parcel of land. A granted easement in gross is personal to the grantee and does not "run with the land." In California, commercial easements in gross held by utilities, railroads, communications companies, and others to access public rights of way do "run with the land" and are treated like appurtenant easements.
A prescriptive easement is akin to a right to trespass on another’s property under certain circumstances without compensating the land owner. Generally, a prescriptive easement is granted after the following requirements have been met for a period of time – 1) an open and notorious entry upon the property and use of the property consistent with a claim for an easement; 2) continuous use of the property for 5 years; 3) the property owner’s use of the property was without the land owner’s permission; and 4) the use of the property was adverse to the interests of the land owner. If a prescriptive easement is granted for a narrow purpose, the scope of the easement will be limited to that permitted use. Prescriptive easements are not favored by the courts and are sometimes difficult to obtain. There is no statutory period for the granting of prescriptive easements in Arizona.
Essential Elements of an Easement Agreement
Easement agreements vary in complexity and purpose. However, there are key elements that should be present in standard easement agreements. First, a purpose for the easement is required; the easement can be used only for that purpose. Second, easements usually have a set term, which is the duration of the right granted. Third, these agreements usually include a maintenance clause that provides who is responsible for maintaining the easement area. If the easement is needed immediately, ask your attorney to prepare a temporary easement agreement so the parties can begin using the easement right away. A temporary easement grants the right to do what the easement is intended for but it does not set out the care and protection requirements. These rights must wait until the permanent easement is prepared.
Sample Easement Agreement
Below is an example of an easement agreement entered into by a grantor of the servient estate and the grantee of the dominant estate. It contains various commonly used language to protect both parties.
EASEMENT AGREEMENT
This EASEMENT AGREEMENT (the "Agreement"), made as of the ___day of _____, 20__ by and between, ___ ("Owner"), whose address is ___, and ___("Grantee"), whose addresses is ___.
WHEREAS, Owner is the owner of those certain lands located in the Town of _____, New York (the "Town"), known and designated on the assessment map of the Town as Section ___, Block ___ and Lot ___ ("Servient Estate") as shown on Exhibit A, attached hereto and made a part hereof; and
WHEREAS, Grantee is the owner of certain lands located in the Town, known and designated on the assessment map of the Town as Section ___, Block ___ and Lot ___ ("Dominant Estate") as shown on Exhibit B, hereto annexed and made a part hereof; and
WHEREAS, in order to provide the Dominant Estate with Gardiner’s Pond, as shown on Exhibit B, at and over the Servient Estate, the Owner has agreed to grant an easement over the Servient Estate, which easement shall be governed by the terms and conditions expressed herein.
NOW, THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00) and other good and valuable consideration received by Owner, Owner does hereby grant, convey and confirm to Grantee a perpetual easement ("Easement") over the course ("Course") more particularly shown on Exhibit C annexed hereto and made a part hereof for any and all purposes necessary to facilitate Grantee’s continued operation of Gardiner’s Pond over, across and through the Servient Estate to the Dominant Estate, including but not limited to the right and permission to install and thereafter maintain, repair, replace, reconstruct, use, operate, upgrade, alter, extend, set, build, remove and thereafter remove any and all pipes, drains, manholes, vaults, conduits, valves, wells, outlets, inlets and other structures, tanks, tanks trucks, fences, tethering devices, pumps, pump sheds, structures, wells, buildings, substations, utilities, drives, accesses, means of ingress and egress, approaches, docks, wiers, machinery, equipment and appurtenances necessary or convenient for the continued operation, maintenance and repair of Gardiner’s Pond, over, on, across, under, through, along and upon the Servient Estate.
The Course shall encompass a strip of land varying in width from twenty (20) feet to twenty-five (25) feet along the Course as shown on Exhibit C. The Course shall be used together with the right at all times to do all acts on the Servient Estate necessary to maintain, replace, repair, rebuild, operate, remove, restore, reconstruct, reconstruct, install, utilize and upgrade the Easement, and the right to drive, operate, use and park various types of vehicles, and to walk across the Servient Estate, and to enter and exit the Servient Estate, with personnel and all tools, vehicles and equipment as may be necessary or desirable to exercise the rights granted herein.
The Owner for himself and his successors and assigns, covenants with the Grantee that so long as Grantee, its successors and assigns shall hold the Dominant Estate, then the Owner and his successors and assigns shall not erect or commit or suffer to be erected any structure or thing on the Servient Estate or do or permit to be done any act or anything within or about the Servient Estate in such manner as to prevent or obstruct or interfere with the flow of water from the Course and over the Servient Estate to the Dominant Estate, and that the Owner, his successors and assigns shall at all times keep and maintain, produce, clear away, remove and operate the Easement and the Course in a good, workmanlike and sanitary condition, and shall promptly remove all obstructions or encroachments on the Easement and the Course and shall promptly restore and repair the Easement and the Course after the occurrence of any act of God, human agency or other cause which might result in the destruction or damaged of the Easement, the Course, the Servient Estate, the Dominant Estate or any of the improvements or appurtenances affixed or made in or upon the Easement.
In the event of the inability to agree by negotiation as to the amount of damage or compensation for any such act of God shall or other human agency, or in case any damage or loss shall occur to any property of either the Owner or the Grantee (including incidental damages sustained by each as owner or tenant of said lands by loss of rents), and in regard to the reasonable cost to repair, maintain, restore, replace and reconstruct of the Easement and the Course and the Services and all buildings, if any, on the Servient Estate and the Dominant Estate, each and every such matter shall be determined by arbitration in accordance with the Rules for the making of an award by a single arbitrator promulgated by The American Arbitration Association, Inc., at its office in the City of New York, by a single arbitrator, whose determination and award shall be final and binding upon the parties subject only to a review of the determination and award by an appellate panel consisting of three (3) arbitrators appointed by The American Arbitration Association, Inc. in accordance with its rules, to be heard at its office in the City of New York, whose decision shall also be final and binding upon the parties. The arbitrator shall determine the portion of the expenses, costs, fees and disbursements to be paid by each party to the arbitration. The expenses, costs, fees and disbursements of The American Arbitration Association, Inc. and the arbitrator shall be borne by the party on whose behalf the arbitration was requested. Upon thirty (30) days prior written notice to the Owner, the Grantee shall have the right to enter upon the Servient Estate and exercise the rights granted to it pursuant to this Agreement, but the Grantee shall not be required to do so until after the resolution of such matter by arbitration.
Implications and Legal Considerations
Beyond the more "academic" understanding of what an easement might be, a landowner who enters into such an agreement should understand some of the legal implications that may impact their property rights. By way of example, let’s say that the easement provides the right to cross onto the easement owner’s land at any time to maintain the electrical station. This easement may extend to the easement owner’s guests or employees as well. A landowner may be frustrated when someone crosses their property to gain access to the easement but unless the easement provides for a restriction on the number of people who can use the easement, the landowner may be out of luck. When contemplating an easement agreement, it is important to consider some of the following aspects: – Does the easement limit the holder’s right to enter and exit? – Does the easement provide for the holder’s guests or employees to use the property assigned to the easement? – Is there a limit on how often the holder can use the land, or is it unlimited? – Is there a limit to what purposes the easement is during each use? For example, can the easement holder go on the land for purposes other than what is provided in the easement agreement? – Does the easement require that the easement holder provide you with notice prior to entering? – Is there a requirement that the easement holder return the property to its original or a pre-determined condition after exiting? – Is the easement holder required to provide access for yourself or others who are not covered by the easement? – Does the easement holder have the right to make improvements, alterations or subdivisions to the property assigned to the easement? – Will the easement holder compensate you for using your land? – Is the easement revocable? – Are there limitations on who the easement holder can assign the easement to? – Are there insurance or indemnification requirements for the easement holder? – Are there any limitations on the easement holder’s use of the property assigned to the easement that will significantly limit who or how long a person can be on your land? A lengthy easement could create problems in the future if the person who entered someone else’s land passes away . – If the easement is granted "in perpetuity" is it possible to assign the easement to someone else? – If one of the owners of the property assigned to the easement dies, does the easement cover the successors and assigns of the property assigned to the easement? – If the easement is revocable, how much notice must be provided and who is responsible for remedying any harm created by the easement holder? – Does the easement right include any ability to drill for oil, use mineral rights or build on the property assigned to the easement? – Are there limitations as to how much damage the easement holder can cause the assigned property? If the easement holder is not required to restore the property assigned to the easement to its original condition, or to remedy damage/property loss, the landowner may have to deal with higher costs in the future to remedy those issues. Disputes will inevitably arise regarding easements because of their importance whether a specific landowner or easement holder is seeking to enforce their rights. As a landowner, it is best to enter into an easement agreement understanding the legal implications and how they may impact who can access, how they can access, and the ultimate value of his or her land.
How to Write an Easement Agreement
An easement, a legal right to use an adjoining parcel of land owned by another for a specific purpose, itself is more than capable of bringing with it a laundry list of possible issues, whether these arise from the language sought to be used in the drafting of the easement agreement or situations unique to the land at issue. A skilled lawyer will help you navigate your way through the key phrases and clauses that must be used, as well as the quirks that may arise due to your specific circumstances. This may include negotiating with counterparts, drafting clarifying language into the easement agreement, and seeking zoning board approvals if needed.
The rules and requirements for drafting and executing easement agreements differ from state to state. In New Jersey, easement agreements must be recorded with the county clerk where the easement is located. The parties can choose whether the easement will be permanent or temporary. Easements are generally either express, or implied by operation of law. Most easements are express in the sense that they are written into a contract. Easements may be obtained in several ways, including but not limited to express grant, implication, condemnation, reservation, necessity, and prescription. A properly drafted easement agreement will effectively address all of the proper language and particulars unique to your situation.
Disputes in Easement Agreements
While an easement may be a convenient way to communicate rights and obligations, like any other part of a contract, they can be sources of significant conflict. These disputes fall into three categories: outside the box, inside the box, and closing the box. The "box" here refers to the box of easement rights that parties end up fighting over.
Outside the Box
Some of the most costly and time consuming disputes over easement use never had to occur if the parties had simply been clear about their rights and obligations. Outside the box disputes fall under three categories: obstruction, interference, and excessive use. Where easement use is obscured (i.e. obstructed) such that it is inaccessible to the easement holder it is of no value to that person and raises a tort claim for trespass that is distinct from an easement damages claim. Obstruction disputes can be resolved through negotiation or through summary judgment if the facts are not in dispute. In Minnesota, an easement holder must prove that it is entitled to reasonable and probable use of its easement, the reason for the obstruction is negligible, no greater rights are given due to unreasonable use, and the obstruction may be removed. In certain circumstances an easement holder has a duty to avoid repairing an obstruction. So the dispute goes both ways. Interference with the use of an easement also gives rise to a tort claim in addition to an easement cause of action. However, in some cases, without an actual risk to safety, unreasonable interference with an easement will only allow conduct that raises the possibility that the easement holder will be physically harmed to constitute an easement damages claim. Excessive use disputes arise as a result of ambiguities such as the type of vehicles to use; location of repair rights; and rights to indemnification against hazard. Parties trying to limit use by the easement holder must specifically identify what the easement holder cannot do. Generally, use by the easement holder does not give rise to an easement damages claim unless it constitutes trespass.
On the Inside of the Box
Disputes that arise within the easement box—interpreting the rights and obligations enumerated in the contract—cannot be as easily disposed of in negotiating an easement. The best way to avoid this dispute is to specify rights and obligations as precisely as possible: what equipment will ever be used , where, how and when. Can the easement be sublet? Who is responsible for what type of maintenance? If these standard issues are omitted, addendum should be signed and given effect to provide clarity. The box is not as simple as cutting it out of the ground and putting it in the easement deed or vacationing the easement and dividing the area at the center. The parties may have to bear the burden of waiting for the occurrence of (or having an expert witness testify to the probability of) a blockage of the dominant estate’s infected sewage into the servient estate before the easement damages claim can even be filed and heard in court. In the case of an easement acquired by necessity (as opposed to grant or reservation) the requirement of unity of ownership is determined at the time of establishment of the easement, or by the subsequent lands conveyed by the claimant. It is possible for necessity rights to be extinguished by the unity of ownership requirement, extinguished by discontinuance, or to be extinguished if no easement interest is found within the easement box. These issues can best be resolved with negotiation of the use of the easement before a court has to resolve these issues. The parties should produce a hierarchy of rights and obligations within the easement for optimal results.
Closing the Box
To close the box altogether, which is preferable to fighting over the inside of the box, a party may want to consider a quitclaim deed. However, if a negotiation does not yield a resolution for an easement dispute, a party can have a court determine the nature and extent of the easement. Such a court may still need to refer to expert testimony on easement law. For example, dispossessions of non-tangible items in property that interfere with legitimate use of the easement may have to involve an appraisal of the value of the damaged item by a qualified engineer. In lieu of filing formal papers, parties can use an arbitration procedure if it’s available to them.