What is an Easement?
An easement is a legal interest that enables someone to use all or a portion of another person’s property. It’s possible to think of an easement as a license or privilege (or bundle of privileges) that gives the holder the right to make some use of another person’s property for a particular purpose. A right-of-way is the most common type of easement.
Depending on the scope of rights granted to the party, only certain things may be done by the easement holder. For instance, the easement holder may have a right of way to drive over the property, but only with specific motor vehicles . In other instances, the easement may give the owner the right to access and use a portion of another’s property to perform repair or maintenance on their own property.
Not all easements are created equal. The O’Connor Group notes the following types of easements:
Easements must be enforceable under state law, and non-compliance with the terms of an easement may not be enforced in some cases. This is why it’s critical to be clear about the intention for an easement and to detail the scope of the easement in an easement agreement. The exact language of the easement is key and as such any easement should be formalized in a written agreement.
Essential Components of an Easement Agreement
One of the aspects of an easement that is somewhat unique is that it does not require an exchange of anything in return. Further, because it is an interest in land itself, the statute of frauds requires that the easement needs to be in writing. The following are some elements of an easement agreement.
The parties – The grantor is the property owner giving up the use of the land and the grantee is the person receiving the use of the land. Description of property – A clear description of the property in question should be available. It is helpful for this to include what is being granted, the duration, and where it is located. An example of what the description may look like is "grantee, their heirs, successors, and assigns may liberally enter onto land parcels numbered 2278-054-300 and 2278-053-300, in the 6th election district of Cecil County (MD) and the Magisterial district of Little Elk (MD), with caution (of course) before sunset on the 2nd and 4th Saturdays of the month in order to drive across said parcel in order to access the 22-acre parcel located at 2278-054-300."
Terms – The parties should agree on terms such as the purpose of the easement/grant, provisions for the upkeep of the easement area, and any restrictions or regulations of how the easement may be used.
Duration – An easement can exist indefinitely or for a specified term. If it is for a specified term it may be renewed once that term has expired.
Creating the Easement Agreement
An easement agreement is a legally-binding contract, so the more specific you are, the better. General terms may seem obvious but can lead to loopholes and breaches of contract. Keep in mind that easements can last a lifetime, which is why clarity is key.
The very first step is to identify the parties involved. List the names and addresses of both the property owner/grantor and using party/grantee. You also need to specify the dominant and servient tenements for the easement. The dominant tenement is the parcel of land that will be allowed to use the easement, whereas the servient tenement is the parcel of land that is granting permission for that use. For example, if a parcel of land is allowing a neighbor to cross it to reach a beachfront, the former would be the servient and the latter would be the dominant tenement.
You should then establish the nature of the easement. A utility easement will include different provisions than a road easement. The purpose of the easement should be clearly defined so everyone is on the same page.
For example, with a water line easement, you might want to outline the responsibilities for maintenance and repair of the water line. It’s also important to include who will bear expenses related to any third-party claims, such as private nuisance or inverse condemnation. An easement agreement needs to include a description of what the easement covers and the methods of use, and outline the rights and responsibilities of both parties in regard to the easement. For example, the document might include how much space the easement will take up and how far underground it runs. It might also specify that the easement cannot be used for certain purposes or without prior notice. Outline the signing process—e.g., that the agreement must be notarized or certified by the county recorder—and when the recording will take place. Explain that the easement will terminate in the event of dissolution of marriage, bankruptcy or foreclosure.
Depending on the situation, you may also want to add optional clauses such as granting permission to remove trees and bushes if they are deemed an obstruction, or outlining how notice should be given if someone plans to shut off transport due to an emergency. Finally, the easement agreement will be signed and witnessed.
Legal Issues and Mistakes to Avoid
Legal considerations come into play in a number of different ways when drafting an easement agreement. Of course the first legal consideration is whether an easement will be granted at all and that involves looking at the legal right to grant it. Property owners can grant their neighbors many kinds of rights to cross their property or use it in some way but not every right belongs to every property owner. In other words, you have to own the property that you are granting an easement over and although you have to be a legal owner of the land, it doesn’t necessarily have to be your house.
Another legal consideration when drafting an easement agreement involves finding the right words that accurately convey the intent of the parties. In the case of easements, the intent of the parties is very important and it must be clearly and unambiguously stated in an agreement in order to be enforceable. There is a body of law that involves interpreting easements and this law states that when interpreting an easement , the key factor is the intent of the parties with regard to the use of the easement. Therefore, when drafting, you must ensure that the agreement clearly conveys the parties’ intent when it comes to the easement.
One common pitfall when drafting easement agreements for residential properties is that you must determine whether a homeowner’s association exists. Even residential association easements could be problematic because sometimes an easement could be made without notifying the governing body of the association which could lead to issues when it comes to enforcement of the easement. A simple run to either the local or state tax offices to check on this issue could save you headaches down the line.
The effect of failure to disclose an easement agreement on the title is another legal consideration of which to be aware. All easements must be disclosed when selling or mortgaging a property so as to avoid title problems and to allow the buyer or mortgagee to take notice of the interest in the easement when examining the legal title to the property.
Completing the Agreement and Filing it with the Court
Once all parties have had an opportunity to discuss the draft easement with their respective counsel and to make any necessary modifications to the agreement, the final step is the sign the easement. Depending on the particular circumstances of the easement, signatures in the presence of a notary public may be required.
Once fully executed, an easement should then be filed with the local government so that the easement is a permanent record. This step is essential to establish the enforceability of the easement as against third parties.
Changing and Ending an Easement Agreement
Sometimes circumstances surrounding a piece of property change after the initial easement is granted. When this occurs, the easement can often be modified without the additional expense of having to draft a new one. This can happen if the language contained in the original document is insufficient and a court does not have the ability to infer the intent of the writer. In such situations, both parties to the agreement can execute a modification that simply corrects this deficiency. Problems of this nature typically arise in the context of easements expressly conveying usage rights, where the description of the area to be used is difficult to visualize. This is often seen in easements conveying a right-of-way over a rural or undeveloped area, where a public thoroughfare is not located. In such cases, it may be necessary to modify the easement to change the right-of-way so that the actual route taken is explicit. Easements can also be abandoned and terminated. Abandonment of an easement occurs when it ceases to be useful to the holder. For example, an access easement through your land to a neighboring home may no longer be useful if you build another roadway for use . In such circumstance, you would possess the burden of proof that the easement has been abandoned. Such proof typically includes evidence of non-use for a long period of time and affirmative steps taken by the easement holder to end the use. Termination of an easement may occur by choice of either party, or by a court order. A court order will be necessary to terminate an easement where the parties are unable to mutually agree whether the easement has been used or is still needed. The party seeking termination must show that the easement is either a burden to itself and other users, or has not been used by the easement holder for a period of at least 10 years. If an easement is created for a period of years, it must be exercised during that time, otherwise the easement expires on its own after the period expires. Occasionally, courts will terminate an easement in order to keep one party from abusing its rights under the agreement. Such circumstances arise when the easement is reformed or terminated by operation of law, only if reformation is not possible; and the parties cannot agree whether the easement is a good or bad thing for either side.