September 28, 2018
Author: Don F. Dagenais
Organization: Lathrop & Gage LLP
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Discrimination, Harassment & Retaliation
Federal and state laws make it illegal for employers to discriminate against employees or applicants for employment because of race, color, religion, sex, national origin, age, handicap or disability, pregnancy and veteran status. These are known as “protected classes.” Maryland also affords protection sexual orientation and transgendered status. These laws are wide-reaching and affect almost every aspect of the employment relationship, from applying for a job to on-the-job conduct, work assignments, discipline, and interactions between employees and between employees and managers.
Why Take This Seriously?
Preventing discrimination, harassment and retaliation against employees is obviously the right thing to do to create the type of work environment that we all want. Not doing so can have significant economic consequences. Some recent examples:
• A jury awarded a gay Los Angeles police officer more than $ 1 million in a retaliation case.
• A state court jury hit UBS with a verdict of $10.6 million where a female employee claimed that a stockbroker sexually harassed her, the company did not properly respond to her complaints and eventually fired her in retaliation for her complaints.
• A Georgia county settled a race bias lawsuit brought by four white managers for $1.3 million.
• $1 Million judgment in sex and race harassment suit against Whirlpool affirmed by a court based on 2 months of abuse against black female worker by white male coworker resulting in physical assault and serious permanent mental injuries preventing her from working again.
• International Profit Associates agreed to pay $8 Million for sexual harassment of 82 women including a pattern and practice of sexual assaults and propositions, inappropriate touching and crude sexual comments both fostered by and participated in by highest ranking officers.
• A jury awarded over $1.5 Million in a sexual harassment and retaliation case against Mid-American Specialties.
• Supervalu/Jewel-Osco paid $3.2 Million and agreed to a number of policy changes under a federal consent decree in disability bias suit alleging discrimination in practice of terminating employees with disabilities at the end of medical leaves of absence rather than bringing them back to work with reasonable accommodation.
• Paul’s Big M was hit with a $1.3 million jury verdict in a sexual harassment case brought by female employees, many teens still in high school, found to have been subjected to hostile work environment by the general manager for more than 10 years: he suggested sexual threesome with teenage cashiers mother, he stuck his tongue in teenage cashier’s mouth, he grabbed and touched breasts and buttocks, he made sexual propositions and lewd gestures.
• A state jury awarded $5.8 million to a white plaintiff in a national origin discrimination lawsuit.
• ABM Industries settled a sexual harassment suit by 21 Hispanic female janitorial workers for $5.8 Million in a suit alleging unwelcome touching, explicit sexual comments, exposure, requests for sex, groping, and at least one rape.
• Republic Services paid nearly $3 Million for firing 21 workers who were over 40 because of age.
• Elmer W. Davis paid $1 Million to settle a race discrimination lawsuit in August 2010 alleging pattern of race discrimination against black employees including: racial slurs by white foremen (“niggers,” “lazy niggers,” “sambo,” “slave,” “monkey,” “all niggers should get on a boat and go back to Africa,”); nooses; offensive graffiti (“dirty nigger,” “KKK,” swastikas); disparate treatment in job assignments (most difficult, dirty and less desirable jobs reserved for black workers); and routine laying off of black workers first and rehiring of them last.
• Alabama KFC owner paid more than $1 Million to settle a sexual harassment suit brought by 19 female employees, some teens, subjected to a hostile work environment that included open description of sexual desires and interests, sexual touching, groping, gestures, demonstrations, open discussion of genitals, and female characteristics.
Common Questions about Discrimination
(a) Who is protected?
Almost everyone is protected by the anti-discrimination laws. The categories the laws mention – including race, color, religion, sex, national origin, age, handicap or disability and veteran status -- are broad enough to encompass virtually any applicant or employee. Men can be victims of discrimination and even sexual harassment. White employees can be discriminated against just as Hispanics, African Americans, or other minorities can be. The victim can be the same race or gender as the discriminator as well. This means every employee or applicant is a potential discriminator and a potential victim of discrimination.
(b) What constitutes discrimination?
Failing or refusing to hire an individual because of his or her membership in a protected class, firing an individual on that basis, or discriminating in any way with respect to pay, hours, assignments, privileges, and discipline because of that status constitutes discrimination. It is also illegal for an employer to retaliate against any applicant or employee because that person has complained about discrimination.
This means that an employee can complain that he has been discriminated against if he feels that decisions about work assignments, break times, pay, discipline, enforcement of attendance rules, preferential treatment, and other supervisory actions have been made on the basis of race, age, etc. In addition, employees may assert claims of discrimination if they have been subject to what is called “a hostile environment.” For example, if employees experience excessive criticism, ridicule, offensive remarks, and offensive treatment on the basis of their membership in a protected class, they may claim they have been discriminated against.
Sexual Harassment
What is sexual harassment?
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature between members of the same or opposite sex constitute sexual harassment when:
• Such unwelcome behavior or conduct is persistent.
• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.
- Example: An employee is told that if she wants to keep her job, she must date her supervisor.
• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals.
- Example: An employee who has rejected her supervisor’s sexual advances suddenly receives a poor performance evaluation.
• Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment.
- Example: A work environment where sexual language or behavior is tolerated even though an employee finds it offensive and complains about it.
• Anyone can be a harasser regardless of gender. This means men can harass women, men can harass men, women can harass men, and women can harass women.
• Sexual orientation is not always relevant in same-sex sexual harassment cases. This means even “horseplay” and joking between men regardless of their sexual orientation can constitute sexual harassment.
• What one employee finds funny may be inappropriate or offensive to another. If you would not put a joke, story or comment in the newspaper with your name next to it, it probably is not appropriate for the workplace.
• Comments or conduct need not be sexual or sexually oriented to constitute harassment. Gender-based conduct also can be harassment.
• Work is a professional environment; even where employees are friendly, boundaries are important.
• Employers can be held liable if it does not address sexual harassment by third parties such as vendors, suppliers, and customers.
Other Types of Harassment
Sexual harassment is not the only type of harassment that can occur in the workplace. Under Title VII and the other discrimination laws, harassment based on membership in any protected class is illegal. Protected classes include:
• Race
• Religion
• National Origin
• Age
• Disability
• Gender
• Pregnancy
• Veteran Status
Any harassment based on membership in one of these classes (or any other class protected by state or local law) violates discrimination laws. Maryland law also forbids discrimination in employment, housing and public accommodation based on sexual orientation and, effective October 1, 2014, will bar discrimination based on transgender status.
Retaliation
Almost all federal and state labor and employment laws prohibit employer retaliation against an individual who complains about or provides evidence about an employer’s alleged improper practices.
The purpose of the retaliation provisions in discrimination statutes is to protect individuals who complain about discrimination or provide information about possible discriminatory practices in the workplace. The concept is that without individuals to file complaints or provide information about possible complaints, the goal of eliminating discrimination and harassment from the workplace would be difficult or impossible. These provisions protect employees from suffering any type of negative action as a result of having complained of harassment or discrimination or participating in an investigation into any such claim.
Until a few years ago, many courts required employees making a retaliation claim to show that they suffered a tangible harm as a result of their protected activity – for example, being fired or demoted. However, the United States Supreme Court made it much easier for employees to pursue retaliation claims, holding that illegal retaliation includes any action that would deter a reasonable employee from engaging in protected activity. This means that supervisors must be much more careful in how they treat employees during and following a harassment or discrimination claim, including an internal complaint.
Examples of conduct that may lead to a retaliation claim include: discipline, demotion, transfer to a different position, transfer to a different shift, change of job duties, change of job location and closer scrutiny.
FAMILY MEDICAL LEAVE ACT
• The Family Medical Leave Act (the “FMLA”) is a federal law granting leave to employees for the following:
• their own serious health condition
• the serious health condition of a family member
• to care for a new child
• for certain circumstances created by a family member’s military service.
• FMLA leave taken for any of these reasons, including multiple leaves during the year for different reasons, counts towards the employee’s total FMLA leave entitlement for the year – generally a total of 12 weeks, except in the case of leave to care for a family member injured as a result of active duty military service.
• To be eligible for FMLA leave, employees must:
• Have worked for Applegate for at least 12 months
• Have actually worked at least 1250 hours in the preceding 12 months and
• Work at a location with at least 50 employees within a 75 mile radius.
• Leave under the FMLA is unpaid, but employees can use any paid leave they have available while on FMLA (e.g., sick, vacation, etc.) and the employer can require that they do so.
• Employer must continue the employee’s health benefits while the employee is on leave on the same terms as if the employee was at work.
• Employees must be returned to the same or equivalent position with equivalent pay, benefits and responsibilities following the leave.
• Employees must provide certain notice of their need for leave.
• Once notice is given, Employer must designate leave provisionally as FMLA qualifying.
• Employees need not reference FMLA specifically when requesting leave, but must give enough information for the company to determine if the leave is FMLA-qualifying.
• Employer can request more information if the employee fails to offer enough for Applegate to determine if the leave is FMLA-qualifying.
• There are strict time limits for Employer’s response to the employee’s request for leave.
• Employer must notify employee of his or her eligibility within 5 business days of learning of the need for leave, absent extenuating circumstances.
• Employer must provide at least one reason for non-eligibility if applicable.
• At the same time, employer must provide employees with a statement of rights and responsibilities.
• Employer has 5 business days to certify leave as FMLA after employee returns medical certification or any other information requested.
• Notice must:
• Inform employ of any substitution of paid leave.
• Address any requirement present a fitness-for-duty certification upon return to work.
Leave for an Employee’s Own Medical Condition or That of Family Member
• Eligible employees are entitled to up to 12 weeks of leave for their own serious health condition each leave year, which will vary for each employee, or the serious health condition of a family member.
• The employee must be unable to perform “one or more essential functions” of the job to qualify for leave.
• Employer may provide statement of job functions to the health care provider and require health care provider to specify which functions employee cannot perform.
• Employer determines which functions are essential.
• Qualifying family members are an employee’s spouse, parent or child.
• Leave to care for a parent does not include in-laws, but includes adoptive parents and people who acted in loco parentis to the employee when he or she was a child.
• Child includes foster child and adoptive child, as well as a child to whom the employee stands in loco parentis.
• Child means only children under the age of 18, unless the adult child is rendered unable to engage in self-care as a result of a physical or mental disability.
• Providing psychological comfort and care is sufficient to be needed to care for a family member with a serious health condition.
• Serious Health Condition is an illness, injury, impairment or physical or mental condition that involves:
• Inpatient care
• Incapacity due to pregnancy or for prenatal care
• Incapacity because of long term condition (e.g., Alzheimer’s, severe stroke, terminal stage of a disease)
• Multiple treatments (and recovery therefrom) by a health care provider (e.g., cancer treatments, arthritis or kidney disease)
• Chronic serious health condition (e.g., asthma, diabetes, epilepsy)
• Incapacity for more than 3 days plus treatment 2 or more times by a healthcare provider or
• Treatment at least 1 time plus a regimen of continuing treatment (e.g., prescription medication or physical therapy) under the supervision of a healthcare provider.
• “Continuing treatment” does not include a regimen of over-the-counter medications, bed rest, etc., that can be started without a visit to a healthcare provider.
• Common cold, flu, upset stomach and routine dental problems do not qualify as serious health conditions.
• Conditions not currently incapacitating, but that require multiple treatments qualify as serious health conditions (e.g., chemotherapy or dialysis).
• Employer can request medical certification from the employee’s (or family member’s) doctor to determine:
• Whether condition is FMLA qualifying
• Whether intermittent leave is medically necessary
• Probable duration of leave schedule
• Likely duration and frequency of episodes of intermittent leave and
• If applicable, probable number and duration of treatments, actual or estimated dates, and period for recovery.
• Employer can also require employees returning from leave for their own serious health conditions to provide a doctor’s note declaring them fit for duty based on the reason the employee took FMLA leave.
Continuous and Intermittent Leave
• Leave for a serious health condition (the employee’s or a family member’s) may be taken in consecutive, full work weeks.
• Leave for a serious health condition may be taken on a reduced leave (part-time) schedule or intermittently when medically necessary for planned medical treatment or episodically when symptoms flare up.
• No requirement that employee be seeking treatment for each episodic absence.
• Intermittent leave can be used for an employee’s serious health condition or that of a family member.
• Intermittent Leave Examples
• Periodic treatment – chemotherapy
• Periodic symptoms – severe morning sickness
• Periodic flare-ups – severe asthma
• Reduced work capacity – part-time schedule while recuperating from surgery
• For planned medical treatment, the employee must:
• Advise employer, upon request, of reasons why intermittent/reduced leave schedule is necessary and the schedule for treatment
• Consult with employer before scheduling treatment and
• Make “reasonable effort” to schedule leave so as not to disrupt unduly employer’s operations.
• Employee’s health care provider must approve the schedule.
• Employer may require an employee to transfer temporarily during period of intermittent leave to:
• Available alternative position
• For which employee is qualified
• Which better accommodates recurring periods of leave and
• Does not violate terms of collective bargaining agreement, if applicable.
• However, employer cannot transfer or alter the duties of an employee who needs unscheduled or unforeseeable intermittent leave.
• For most employers, intermittent leave for chronic conditions (e.g., asthma attack, migraine headache) causes the most problems.
• Employee must satisfy any existing rules for calling out, but need only give as much notice as is practical under the circumstances.
• Employee can use leave in small increments (i.e., an hour or less) creating coverage problems and creating the likelihood that the employee’s leave entitlement will never be exhausted (e.g., an employee who uses intermittent leave once a week will never exhaust his or her leave entitlement).
• There is no hardship exception and no right to transfer the employee to a different schedule or different position to minimize the disruptions from the frequent call-outs.
• Because many of the most frequently problematic conditions are characterized by subjective symptoms (e.g., migraine headaches, back pain) that can be of short duration during each episode (e.g., asthma attack, migraine), abuse, when suspected, may be almost impossible to prove.
Leave for a New Child
• Eligible employees are entitled to up to 12 weeks of leave each leave year to care for a newly born or newly adopted child or a child newly placed with the family for adoption or foster care.
• FMLA leave taken to care for a new child counts towards the employee’s total FMLA leave entitlement for the year along with leave for taken for any other purpose.
• Leave to care for a new child must be completed within one year of the child’s birth or placement.
• Leave to care for a new child cannot be taken intermittently or on a reduced work schedule, except with employer’s permission.
• Spouses who are both employed by employer can take a combined 12 weeks of leave for this purpose.
Military Family Leave
There are now two types of FMLA leave that can apply to families involved in military deployments:
• An employee may take FMLA leave because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.
• An employee may take FMLA leave to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member.
AMERICANS WITH DISABILITIES ACT
• Generally, the Americans with Disabilities Act (the “ADA”) prevents employers from discriminating against employees or potential employees with disabilities if they can still perform the essential functions of their jobs.
• Under the ADA, a disability is some physical or mental impairment that substantially limits one or more major life activities or having been regarded as having such an impairment.
• A major life activity is something that the average person could do without any difficulty like walking or breathing.
• Less obvious examples of disabilities covered under the ADA include depression and learning disabilities.
• Pregnancy is not considered a disability (but discrimination because of pregnancy is illegal gender discrimination).
• A recovering drug or alcohol addict can be protected under the ADA. This means that you cannot discriminate against an employee because he or she was once in rehab.
• The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as –
• MedicationA. Legal Descriptions
1. General Background.
The general rule of land descriptions in easements is the same as that of legal descriptions in deeds and any other instrument, such as a mortgage or deed of trust, which conveys an interest in the land. The legal description is adequate where it enables a third party unfamiliar with the property to identify it precisely without reference to any matters not of public record. Luthi v. Evans, 223 Kan. 622, 629, 576 P.2d 1064 (1978); Hildebrandt v. Hildebrandt, 9 Kan. App. 2d 614, 616-17, 683 P.2d 1288 (Kan. App. 1984).
The rules for legal descriptions in easements are not, however, quite as rigorously enforced as in the case of deeds. A Missouri case, Jablonowski v. Logan, 169 S.W. 3d 128 (Mo. 2005) held that an easement where one boundary was described as being the center line of a river was valid, because a surveyor would be able to locate and depict the line. Another case has held that “less detail and precision is required [for an easement legal description] in a rural than urban setting.” Maune v. Beste, 356 S.W. 2d 225, 228 (Mo. App. 2011), quoting Johnston v. Bates, 778 S.W. 2d 357, 365 (Mo. App. 1989).
Another case even held that an easement description was not precisely given was still valid, and the court would declare the access to be over property which was “consistent with the interests of convenience, and reasonable, accessible use.” Hall v. Allen, 771 S.W. 2d 50, 53 (Mo. 1989).
In Aladdin Petroleum Corp. v. Gold Crown Properties, Inc., 221 Kan. 579, 561 P. 2d 818 (Kan. 1977), the court noted that “where the width, length and location of an easement for ingress and egress have been expressly set forth in the instrument the easement is specific and definite.”
Unfortunately, not all easements contain legal descriptions which are as precise as those in deeds and other instruments of conveyance. We will first discuss proper legal descriptions in general, and then deal with other issues pertaining to easements in particular.
2. Legal Descriptions in General
a. Brief History of Legal Descriptions. Title to all land in the United States starts with a grant from a government or from a general grantee of some government. From the inception of the Union it was the policy of the federal government to make no disposition of public lands until they had been surveyed and a plat of the survey was filed with the General Land Office (now known as the Bureau of Land Management). This was the origin of the U.S. Government Survey. The fascinating details of this great survey are beyond the scope of this presentation. For its history, see W. Pattison, BEGINNINGS OF THE AMERICAN RECTANGULAR LAND SURVEY (1964). Essentially, the U.S. Government Survey divided the land into rectangular tracts by running parallel lines north and south across the country, and by crossing them at approximately right angles with east and west lines, forming rectangles six miles square. The north and south lines are called “meridians,” and the first of these for each survey is the “principal meridian” (sometimes abbreviated “P.M.”). The east and west lines are called “range lines,” and the first of these for each survey is the “base line.” The squares produced by the intersections of the meridians and range lines are called “townships,” and they are identified by number. Therefore, the phrase “Township 65 North, Range 25 West” refers to the township which is the 65th township square north of the base line and the 25th township square west of the principal meridian.
Each township square is in turn divided into thirty-six “sections” which are each one square mile, or 640 acres. These sections are numbered consecutively, beginning at the upper right corner of the township. Each section, in turn, is divided into quarter-sections of 160 acres each, and these can be further subdivided into half-quarters, quarter-quarters, and so on.
b. Metes and Bounds Legal Descriptions. The oldest method of land description used in the United States, and still the most common, is the metes and bounds system. The “bounds” are the boundaries or the corners of the tract to be described. Many methods exist for marking boundaries in order to identify one’s particular piece of property. The most frequently used early method consisted of marking boundary corners with physical objects such as posts, rocks, pipes, or iron rods. The lines between these points were often designated with fences, ditches, roadways or tree lines. The “metes” of this system were the measurements between the boundaries. These were originally measured by paces, and later by such units as rods, chains and poles.
The metes and bounds description essentially describes a tract by referring its reader to a starting point (“point of beginning”) and then leading the reader from such a point to, and around, the parcel being described.
Present-day metes and bounds descriptions consist of several separate and distinct elements, which together form the full description. A proper metes and bounds description consists of:
? a commencing point that is well known and easily found, which in modern legal descriptions is almost always a section corner from the U.S. Government Survey;
? a point of beginning as part of the property being described; a direction, usually a bearing, for each line;
? a distance for the line (the direction and distance of each line is referred to as a “call”; and
? an ending call which ties to the point of beginning. The metes and bounds method of property description is almost always use to describe easement tracts, since such tracts rarely cover an entire platted lot.
c. Lot and Block Legal Descriptions. The second commonly used method to describe land parcels is by reference to a platted subdivision, sometimes called an “addition.” An owner of a large tract of land will often decide to divide the tract into smaller parcels, for development as a residential subdivision or as a commercial district. There is no reason why this cannot be done by survey with each smaller parcel having a metes and bounds description, but the common practice has been to produce a map of the area, dividing it into lots and blocks, and marking them by number for easy reference. If the map is properly adopted by the city or other governing body as a recorded plat, and is filed of record, subsequent deeds can refer to the lots and blocks and thus not only save considerable verbiage but also avoid the mistakes inherent in metes and bounds descriptions. In addition, a subdivision is sometimes required before the city will issue building permits for the property.
A platted subdivision will reflect all blocks, lots, streets, alleys, parks, waters, monuments, dedicated areas, size of lots, width of streets, utility easements, and all other necessary and convenient information to enable future surveyors to retrace the lines accurately. State statutes often govern to a certain extent the content of subdivision plats and the procedure for their approval. In Kansas and Missouri these statutes are K.S.A. § 12-401 et seq. and Rev. Stat. Mo. § 445.010 et seq. In addition, most cities will have ordinances specifying in particular how plats must be drawn, the information which must be shown, and the procedure for having the plat approved by the municipality.
Lot and block legal descriptions are almost never used to describe easements, other than those which are carved out of previously platted lots and blocks. Easement parcels are almost by definition smaller than parcels to which an entire ownership is likely to be conveyed, and thus are almost always described by metes and bounds. The important thing to remember is that an easement is a conveyance of a property interest, and the legal description in it should be of the same quality as the legal description in a deed or mortgage.
3. Legal Description Errors and How to Resolve Them.
For deeds and mortgages, the entire property owned by the seller or mortgagor is typically being conveyed, so finding an accurate legal description is usually a matter of finding a prior deed, a prior mortgage, a survey, a title insurance policy or some other source, and simply copying the legal description accurately.
In the case of an easement, it is rare that the grantor will be granting an easement over the entire property (a “blanket easement”); rather, the grantor will be conveying an easement over only a portion of the property, such an easement for a particular driveway, utility course, to cover a specific encroachment, or for another such narrow purpose. A ready-made legal description may not exist. Therefore, legal descriptions in easements tend to be a bit more casual than those in deeds, and thus there are more opportunities for errors.
a. Get a Surveyor to Prepare the Description. The first piece of advice is always to get a licensed land surveyor to prepare a proper legal description. This is not only a good idea, but in some states, e.g. in Kansas, it is technically illegal for a person other than a licensed surveyor to practice land surveying, which would include the preparation of legal descriptions, so others purporting to do so, particularly for a fee (including an attorney’s fee) should contemplate whether they are acting legally. Kan. Stat. Ann. §74-7001. Nonetheless, it is tempting, as a practicing attorney, to look at a survey, see the actual location of a driveway (say) and figure that an easement description covering something like “the east ten (10) feet of” another specific legal description should be sufficient for an easement. As a practical matter, this is often done.
b. Where the Legal Description is Really Bad.
1. Correction Easement. Where an easement description is so insufficient as to be almost incomprehensible, the best solution, of course, is to have the parties agree on a proper description and amend the easement accordingly. Sometimes you can have the grantor of the easement sign a “correction easement” akin to a “correction deed” which can correct a scriveners’ or the like, where the legal description can be cured with relative simplicity.
In other cases, especially where the grantor is unavailable, a more serious remedy may be required.
2. Reformation Action. In situations where there is such a serious error in a prior deeded legal description that substantial questions exist as to what was intended, and where the original grantor is no longer available (or is incapable) to execute a correction document, you may need to resort to an action to “reform” the old easement so as to correct the error. A reformation action is available to permit reformation of a recorded instrument “to the original intention of all parties to the instrument, where a mutual mistake was made in describing the property, and the instrument did not convey the property intended.” Beams v. Werth, 200 Kan. 532, 543, 439 P.2d 957 (1968), citing Claypoole v. Houston, 12 Kan. 256, 258 (1873). It is an extreme remedy rarely granted (Morris v. Brown, 941 S.W.2d 835, 840 (Mo. App. 1997)), and only conforms an instrument to what the parties actually intended (St. Louis Realty Fund. v. Mark Twain South County Bank, 651 S.W.2d 568, 572 (Mo. App. 1983)).
How is such an intention derived? Sometimes by the history of use by the parties, or by oral agreement, or by some written document which does not have the dignity of a legal agreement but which indicates intent. Smith v. King, 27 Wash. App. 869, 620 P.2d 542 (Wash. App. 1980). Practical use of the property often indicates intent. Bosley v. Cabot Oil & Gas Corp., 624 F. Supp. 1174 (S.D. W.Va. 1986); Youngstown Steel Products Co. v. City of Los Angeles, 38 Cal. 2d 407, 240 P. 2d 977 (Cal. 1952); Edward Runge Land Co. v. Busch, 594 S.W. 2d 647 (Mo. App. 1980). Sometimes the physical condition of the property dictates where the parties must have intended the easement to have been located; Gendron v. Central Maine Power Co., 379 A. 2d 1002 (Maine 1977) (clearing of trees and overhanging branches for fifty years).
Reformation actions are usually used in deed situations, but can also be used to reform easements. See, e.g., Heath v. Kettenhofen, 236 Cal. App. 2d 197, 45 Cal. Rptr. 778 (Cal. App. 1965), involving the reformation of an easement which was reserved in a deed; Anderson v. Selby, 2005 N. D. 126, 700 N.W. 2d 696 (N.D. 2005) (same).
c. Particular Issues in Easement Descriptions. Several special issues are presented with regard to descriptions of easement properties.
1. Undetermined Locations. It is not uncommon for easements to be granted before the parties really know exactly where the boundaries should be located. For example, it was quite common in the 19th and early 20th centuries for utility companies and oil and gas companies to take “blanket” easements covering entire properties – sometimes hundreds of acres in size – because they did not know, at the time of acquisition, precisely, or even generally, where their utility lines or drilling apparatus might be located. These “blanket” easements were often never amended, even though the utility lines or services might have been laid down or strung many decades ago, or the exactly drilling areas were long ago determined.
So, what is the problem with a “blanket easement”? From the grantee’s problem, it is no bad thing, for the blanket easement still gives the grantee the right to lay down additional utility lines or drill in additional locations, so the blanket easement affords the grantee the maximum flexibility. However, from the grantor’s standpoint, the blanket easement basically makes the entire property liable to interference by additional utility or drilling activities. This makes future planning difficult, if not impossible, particularly where once rural property has now been overtaken by urban development such as residential subdivisions, shopping centers, industrial parks and the like. The owner needs more specificity so the owner can know where to build improvements, locate driveways, install additional utilities, and so forth.
Moreover, the utility company holding a blanket easement may decide to relocate a line elsewhere on the property, and has every right to do so where the easement is blanket, even though the owner may have long ago erected improvements over a portion of the property. This is especially true where the easement prohibits the grantor from constructing anything in the nature of permanent improvements over the easement land, as is often the case in the preprinted forms of easements used by utility companies. As a practical matter the parties usually work out a location, but most property owners would feel more comfortable knowing that the utility is limited to a narrow easement area and that a relocation of the line will need to be in that same area, and not something over which the owner will need to negotiate.
Similar problems arise where an easement is not blanket, but purports to be narrower in character, but the location is not specified. For example, in one case the grantor signed a “10-foot easement” but there was no identification as to exactly which ten feet were involved. Cheever v. Graves, 592 N.E. 2d 758 (Mass. App. 1992).
2. Rules for Determining Location. The general rule, in such cases, is that the location is determined by the intent of the parties, to the extent the intent can be determined. E.g., Bachman v. Hecht, 659 F. Supp. 308 (D.V.I. 1986); see J. Bruce & J. Ely, THE LAW OF EASEMENTS AND LICENSES IN LAND §7.02 (1988). The owner of the servient interest (the property which is subject to the easement) has the right to delimit the easement in the first instance, provide that the owner’s decision is accessible, convenient and reasonable to both parties. Bradley v. Arkansas La. Gas Co., 280 Ark. 492, 659 S.W.2d 180 (Ark. 1983); Bethel v. Van Stone, 120 Idaho 522, 817 P.2d 188 (Idaho App. 1991). If the servient owner fails to do so, then the dominant owner (holder of the easement right) has the right to determine the easement location, again subject to reasonableness, such that the easement does not unreasonably interfere with the enjoyment of the land by the servient owner. Florida Power Corp. v. Hicks, 156 So.2d 408 (Fla. App. 1963).
B. Defining the Easement
1. Key Terms to Keep in Mind. There are a number of issues to keep in mind when drafting an easement agreement and defining the terms. Simply granting the easement is not sufficient. A number of other matters must be specified in order to avoid later unwelcome and expensive controversies (not to mention embarrassing questions from clients who wonder why you didn’t think about these things when creating the document in the first place):
? The Grantor. Specify the grantor carefully. The grantor of the easement must be the same person or entity which owns title, otherwise the easement cannot pass any interest, just as would be the case with a deed. It is wise to get a copy of the most recent deed, or a current title report, to verify the name. Otherwise you easement may be invalid at the start, and everything that follows will be moot.
? The Grantee. Who is your grantee? Remember that this is the person or entity who will be entitled to the privileges of the easement, and who will also be the person who must perform any covenants which may be incumbent upon the grantor. If there are substantial covenants (e.g., major improvements to be constructed, or significant maintenance responsibilities) think about maybe having a guarantor of the grantee’s obligations, if the grantee does not have sufficient stand-alone financial capability.
? Dominant/Servient Tenements. If the easement is appurtenant to other property owned by the grantee, it may become important at some point in the future for the parties to know precisely what property that is, for example if the grantee sells part of the appurtenant property (dominant estate) to another party. Does the easement still exist if the appurtenant property is divided? Does it benefit both of the new owners, or just one? If so, which one, and how is the benefited property determined? To answer these questions, it is wise to define the appurtenant property in the easement document itself, usually by describing it generally in the “Recitals” section (or “Whereas” clauses) of the easement agreement and then attaching a legal description. Then you are in a position to answer the other questions, if the appurtenant property is of a kind that is likely to be divided in the future.
The servient property can also be described. This might be wise if the property is likely to be divided and end up in two or more ownerships. You will want to avoid controversy among the future multiple owners and make it clear that any owner of all or any part of the easement tract is encumbered by the easement. Then, the above questions could be answered by clauses specific to the situation.
? Legal Description of Easement Tract. As covered elsewhere in these materials, a proper legal description is crucial.
? Duration of Easement. Is your easement perpetual, limited in time, of a specific duration in years, or what? You should specify in the document, and, if it is intended to be perpetual, specify that it binds the successors and assigns of the parties (and in the case of appurtenant easements, that the easement binds the future owners of the servient estate and benefits the future owners of the dominant estate).
While most easements are perpetual, not all are. Examples of easements limited in time are temporary construction easements and easements designed to give consent to encroachments (which typically last only for so long as the encroachment exists). Other easements intentionally last only for a certain number of years (for example, an access easement intended to be temporary until a permanent roadway elsewhere is built), or for the lifetime only of a certain grantee.
Easements represent currently vested interests and thus are not future interests which are subject to the Rule Against Perpetuities. J. Gray, THE RULE AGAINST PERPETUITIES § 279 (4th ed. 1942). Therefore, no Rule Against Perpetuities savings language is necessary. However, if your easement is one which is to spring into life upon the happening of a future event (subject to a condition subsequent), then you should guard against this.
? Use of Easement. Barring a specific restriction in the document, the grantee of an easement may essentially use it for whatever purposes the grantee wishes. The courts generally speak of attempts to discern the intent of the parties and interpret the easement in accordance with the parties’ likely wishes (Chase v. Eastman, 563 A.2d 1099 (Maine 1989)), but unclear grants are resolved against the grantor (Mikesh v. Peters, 284 N.W.2d 215 (Iowa 1979)), and thus a sloppy grantor will pay the price for not specifying the permitted use. Use clauses can be as varied as are the many types of easements, but it pays to think carefully about the uses which might be permitted and which might be prohibited. For example, does a grant of an access easement over farmland include permission for the grantee to camp out on the property and shoot deer during the hunting season? Some grantees will stretch the use as far as imagination permits.
? Appurtenant or “In Gross” Easement. We have commented above about the importance of defining the servient and dominant tenements and providing for clarity as to possible future changes in ownership or multiple ownerships of one or both of the affected parcels. If the easement is “in gross,” the easement encumbers the property but there is no dominant estate. Thus, the identity of the grantee to which the easement is conveyed is particularly important, and the easement document should define whether the easement continues to run in favor of that grantee’s heirs or successors, whether it is assignable, and the extent of any limitations on these things. Remember that many courts (perhaps wrongly) think of “in gross” easements as being “personal” and hold that, generally speaking such easements are nonassignable and noninheritable. Thus, if the parties’ intention is anything else, it should be clearly expressed lest an unwitting court hold otherwise at some future time.
2. Additional Terms to Consider in Defining the Easement. In addition to the basic easement provisions outlined above, there are a number of other terms that may be important, in individual circumstances, for you to include in defining the nature and extent of the parties’ easement rights, such as:
? Future Obligations of Grantor. Is the grantor of the easement undertaking any future obligations, such as the sharing of maintenance expenses (in the case of a nonexclusive roadway easement serving two properties, for example), or responsibilities to build an extension to a roadway or develop its property in some way? If so, these obligations should be set forth in the easement.
? Future Obligations of Grantee. Much more common is the grantee agreeing to perform certain tasks in the future. Often a grantee will agree to maintain all or a portion of an easement roadway or area. Also, a grantee may be giving the grantor something as a quid pro quo for the conveyance of the easement – agreeing to construct some improvements, grant some sort of interest to the grantor in exchange, or some other form of undertaking. Again, these obligations should be spelled out in the easement agreement.
? Indemnities and Insurance. What sorts of activities will be conducted on the easement tract, and what is the likelihood of injury or accidents? One thing is certain, and that is that in the case of an injury, a plaintiff’s lawyer will undoubtedly sue both the grantor (property owner) and the grantee (who presumably has control over the easement activities). This is particularly true where the easement document spells out shared maintenance responsibilities. In many instances, therefore, the question of indemnities arises – who should indemnify who, and from what? Along with indemnity, the issue of insurance becomes important -- who carries it, for how much, with what kinds of companies, in what amounts, with which named insureds, with what permitted deductibles, etc. As in the case of leases, these issues sometimes lead to waiver of subrogation clauses.
? Financial Capability. If one party or the other is undertaking significant obligations (for example, the obligation to construct improvements, or provide significant maintenance), the other party may want some ability to verify the other party’s continuing financial capability. This is sometimes done through clauses requiring that periodic financial statements be provided, with certain net worth tests to be met, etc. Do not ignore the possibility of guaranties by parent corporations and the like, if the party undertaking the easement obligations is a single-asset entity or otherwise likely to have insufficient assets. Keep in mind, in drafting these clauses, the long-term nature of easements (often perpetual, and thus much longer term than leases!), and the possibility that the financial capabilities of the parties, as well as the identities of the parties themselves, may change dramatically over time.
? Notices, Governing Law, Other Provisions. A welldrafted easement agreement should contain provisions regarding the sending and receipt of legal notices, the governing law, successors and assigns, and other sorts of “miscellaneous” clauses to be found in most legal agreements.
3. Special Issues in Cross-Easement Agreements. The above discussion addresses a simple two-party easement situation. Many easements, however, affect and encumber many properties and benefit many landowners, such as where a residential or commercial development covers a wide area in a subdivision community or an industrial or warehouse park. These kinds of agreements require special consideration.
These easement agreements may be imposed at the beginning of the development by a single developer or grantor in favor of itself and all future owners, or may arise later when there are several property owners who wish to submit their properties to a common regime. The easement document will undoubtedly call for ingress and egress easements for pedestrian and vehicular purposes across the private roadways in the development.
Consider the fact that the locations of the roadways and walkways may change from time to time, so the cross-easement agreement should cover improvements as actually built and as they may change over time. Rarely does a developer know, at a project’s inception, exactly how all of the ingress and egress routes and common areas are going to come into being as future portions of the property are constructed.
Almost all common property developments will also need to grant utility easements to public utility companies and others which will be installing utilities on the property. Since the developer and the utility companies will rarely know exactly where such lines will be installed until the utilities are actually constructed, such grants need to be sufficiently broad to anticipate future changes in location and use. Also, many developers find it advisable to allow future owners of tracts within the development to relocate utility lines, if they have to, so long as they build adequate substitute lines at their own expense.
Finally, whether the cross-easement agreement is being entered into for an existing development or a new one, everybody understands that the utility company may well “miss the easements” in the process of constructing the facilities. Therefore, many drafters think it is a good idea to include encroachment easements up front, even though no encroachments may exist at the inception of the project. Of course, you want to make sure that such language does not expose an owner to the possibility of losing title by adverse possession or losing a permanent easement interest by prescription.
Cross-easement agreements may also involve many other issues, such as maintenance of the easements, indemnities among the parties, insurance coverages, expiration and termination of the easements, and remedies of the complying owners should one or more other owners breach the agreement. The preceding discussion, however, covers at least some of the basics which you should consider in defining such an agreement.
C. The Easement Survey
Often the parties will employ a professional surveyor to prepare a survey showing the precise location of the easement. This is important for purposes of determining the precise legal description of the easement, and many people find it helpful to attach the survey to the easement document itself as an exhibit, showing exactly the property intended to be covered. The author has found this to be an excellent idea, and quite helpful to future title examiners and prospective owners or mortgagees.
1. What to Look For on the Easement Survey.
You should examine the easement survey with an eye to identifying any encroachments on to the easement parcel, either of improvements or of other easements. If there is another overlapping easement, examine the other easement document to see what uses it permits to be made of the tract and whether or not it is exclusive, in order to accurately determine whether there is a conflict between the two easements.
The survey should preferably note the distance of the easement tract from each property line and, if improvements are to be constructed, to the applicable building setback lines at all locations. The survey should reflect whether or not any building or improvement encroaches over any neighboring property or any easement. There is a wide array of possible encroachments, such as buildings, utility lines, trees, signs, walls, fences, driveways and all other improvements that may exist along the property lines. If the easement is for a parking area, the survey should identify all pavement and paved parking places.
The survey should reflect all points of ingress and egress to the easement property. All curb cuts, driveways and sidewalks should be noted as well. Are improvements to be constructed on the easement tract? If so, the survey should indicate whether any portion of the property is in a flood plain, and if so, the nature of the flood plain and its boundaries. If the easement tract is just for roadway purposes or parking, perhaps such uses are permitted within the flood plain, but be sure to check. This is the sort of thing you do not want to find out later, after the money has been spent.
D. Changes in Location of the Easement
1. Can the Location of an Easement be Changed? The parties to an easement can, of course, always alter the location of the easement by mutual agreement and amendment of the recorded document. But often one party seeks a change in location where the other party disagrees. This may occur, for example, where a driveway which was once convenient for both parties becomes inconvenient because of subsequent construction of improvements on one of the properties, or an increased manner of use, or a change in the character of the surrounding properties. In such instances, can the location ever be changed by the action of one party?
a. The Traditional Answer. The tradition answer to this question has been “no.” The easement document, once recorded, is final unless amended by the parties. Alligood v. LSaracina, 122 Conn. App. 473, 999 A. 2d 836 (Conn. App. 2010); Herren v. Pettengill, 273 Ga. 122, 538 S.E.2d 735 (Ga. 2000); Edgell v. Divver, 402 A. 2d 395 (Del. Ch. 1979); LeClerq v. Zaia, 28 Ill. App. 3d 738, 328 N.E. 2d 910 (Ill. App. 1975) (award punitive damages against a party relocating an easement without the other party’s authorization); and many other cases.
b. The Restatement Rule. However, in recent years, a trend has arisen which would permit such a change. The RESTATEMENT OF THE LAW OF PROPERTY: SERVITUDES §4.8 (Amer. Law Inst. 2000), proposed a fairly radical change in the traditional rule, and stated that:
[T]he owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement,
(b) increase the burdens on the owner of the easement in its use and enjoyment, or
(c) frustrate the purpose for which the easement was created.
According to the authors, “[t]his rule is designed to permit development of the servient estate to the extent it can be accomplished without unduly interfering with the legitimate interests of the easement holder. It complements the rule that the easement holder may increase use of the easement to permit normal development of the dominant estate, if the increase does not unduly burden the servient estate.” The rule, the authors said, would “increase overall utility because it will increase the value of the servient estate without diminishing the value of the dominant estate….” Id., Comment f.
c. Changing the Easement, Even Before the Restatement. Even before the advent of the Restatement, a few courts had issued holdings along this line. For example, in Mosher v. Hart, 157 App. Div. 2d 931, 550 N.Y.S. 2d 187 (App. Div. 1990), a New York court allowed a farmer to relocate a roadway which interfered with his growing season to a different and equally convenient location for the holder of the easement. Similarly, in Sino v. Black, 93 Or. App. 234, 761 P. 2d 1339 (Or. 1988), a court located an easement for a bridge over the shortest practical route to minimize the burden on the servient owner. The Louisiana Civil Code provides a similar rule (La. Civil Code Ann., art. 748); Ogden v. Bankston, 398 So. 2d 1037 (La. 1981) (allowing relocation of an access easement to increase value of ten lots in a residential subdivision, where new location was equally convenient for the dominant owner).
d. Missouri Cases. An interesting article summarizing Missouri cases on the subject of easement relocations, at least as of the date of the article’s publication, is found at Harris, Balancing the Equities: Is Missouri Adopting a Progressive Rule for the Relocation of Easements?, 61 MO. L. REV. 1039 (1996). In one Missouri case, a servient owner unilaterally relocated a roadway easement originally created more than a hundred years earlier which had an unspecified location and dimensions. The court, holding that the owner had no right to do so, basically let it get by with the relocation anyway, but “penalized” it by giving the dominant owner a much larger roadway, 50 feet versus the historic 20 feet, as a means of compensation. O’Brien v. Richter, 455 S.W. 2d 473 (Mo. 1970).
2. Changing the Definition of the Easement Because of Changed Conditions. Another ground for changing the definition of an easement is changed conditions which have occurred since the easement was originally granted. Most easements are perpetual, which sometimes mean that they last much longer than the original conditions which gave rise to them. If the character of the property has changed significantly, then the easement may become outdated and constitute an unnecessary burden for one party or the other. In that case, it has long been recognized that a court of equity may reform an easement or even declare it terminated.
The grounds for such action, however, are extremely strict. In a case involving restrictions on property, a court declared that the restrictions may be canceled or modified only if (1) the conditions surrounding the property have so changed as to utterly destroy its value for the purpose for which the restrictions were promulgated, (2) the change of condition was not due to action on the part of the plaintiff, and (3) the cancellation or modification will work no irreparable injury to others. Owens v. Camfield, 614 S.W.2d 698 (Ark. App. 1981). The Kansas Supreme Court has declared the rule to be that the changed conditions must have neutralized the benefits of the original agreement and must have destroyed its purpose. E.g., South Shore Homes Ass’n v. Holland Holiday’s, 219 Kan. 744, 549 P. 2d 1035 (Kan. 1976).
Changed circumstances alone may not be sufficient; some courts point out that that the original contracting parties might have anticipated changed conditions, and that the doctrine should only be employed where the change in use was really not foreseeable. AC Assoc. v. First Nat’l Bank, 453 So. 2d 1121 (Fla. App. 1984). The court rejected the idea that circumstances had changed sufficiently, and pointed out that there was no showing that commercial development was not foreseeable at the time the agreement (a parking agreement) was made.
a. Application to Easements; Termination. A number of courts have declared easements to be terminated under the “changed circumstances” doctrine. For example, in Inhabitants of Town of Sabattus v. Bilodeau, 391 A. 2d 357 (Maine 1978), a servient owner was permitted to demolish a dam despite a town’s easement to draw water from it, because the construction of a new reservoir rendered the need for the dam obsolete. In an old but intriguing case, an easement for the operation of a facility for boiling whale oil blubber was declared extinguished because of the disappearance of the whale industry; the court declared that the original purpose of the easement was extinguished. Makepeace Bros. v. Barnstable, 292 Mass. 518, 198 N.E. 922 (Mass. 1935).
In a Missouri case, an interest in land which was made specifically for railway purposes was declared extinguished because the easement was granted solely for that purpose, and when it was no longer used by the railway, the consideration to the grantors failed. G.M. Morris Boat Co. Inc. v. Bishop, 631 S.W. 2d 84 (Mo. App. 1982). See also American Oil Co. v. Leaman, 101 S.E. 2d 540 (Va. 1958), where a roadway easement was declared terminated when the county road to which it led was closed. In Carlson v. Fontanella, 74 Mass. App. 155, 904 N.E. 2d 797 (Mass. 2009), a roadway shown on a 1940 subdivision plan was never constructed, accepted or used, and the court declared it terminated because it did not lead to anything. Interestingly, in that case the plaintiffs contended that they opposed the termination not because they needed the easement, but because they wanted to control the development on the neighbors’ property. Perhaps a bit less candor might have helped their cause.
b. Applications to Easements; Modification. In other situations the remedy of the court is to modify the easement or the rights under it, rather than declare an outright termination. In Scruby v. Vintage Grapevine Inc., 37 Cal. App. 4th 697, 43 Cal. Rptr. 2d 810 (Cal. App. 1995), a court modified a 52-foot easement to narrow its width considerably, when such a width was no longer required for a roadway.
The RESTATEMENT OF THE LAW OF PROPERTY: SERVITUDES §7.10 (Amer. Law Inst. 2000) takes this approach, declaring as follows (for our purposes, read “easement” for “servitude”):
If the purpose of a servitude can be accomplished, but because of changed conditions the servient estate is no longer suitable for uses permitted by the servitude, a court may modify the servitude to permit other uses under conditions designed to preserve the benefits of the original servitude.
Few courts have been tempted to follow this lead, however, preferring instead to uphold the sanctity of the original parties’ contract. See, e.g. MacMeekin v. Low Income Hosting Institute, Inc., 111 Wash. App. 189, 45 P. 3d 570 (Wash. App. 2002), stating that easements are property rights and as such are not subject to relocation absent the consent of both parties.
• Prosthetics, including limbs and devices
• Mobility devices
• Oxygen therapy equipment and supplies
• Assistive technology
• Reasonable accommodations or auxiliary aids or services
• Learned behavioral or adaptive neurological modifications.
• As long as the employer knows about the employee’s disability, the employer must provide the employee with a reasonable accommodation, if one exists, to allow the employee to perform his or her job. Examples include:
• Leave of absence beyond amount of leave granted by Applegate’s policies
• Return to work rights – same job
• Modifying policies (e.g., attendance policy)
• Modified Work
• Restructuring job
• Marginal functions only
• No need to remove essential functions
• Transfer to a vacant position as a last resort
• Employers do not have to provide accommodations if doing so would impose an undue hardship on the employer.
• If an employee cannot perform the essential functions of his or her position, even with a reasonable accommodation, the employee is not protected under the ADA.
Interplay of the ADA and FMLA
• Disability v. Serious Health Condition- The definition of a serious health condition is broader than that of a disability. Thus, virtually every medical condition that meets the definition of disability will be a serious health condition under the FMLA but the inverse is not true.
• Extending Leave Beyond 12 Weeks- Employers may be required to extend leave time beyond the 12 work weeks mandated by the FMLA as a form of reasonable accommodation. The FMLA regulations state that the ADA stands in contrast to the FMLA’s 12 week limit insofar as it allows an indeterminate amount of leave as a reasonable accommodation, as long as it does not place an undue hardship on the employer.
• Discipline or Discharge for Absenteeism- Discipline and discharge for attendance problems may implicate both the ADA and the FMLA. If the employee has a disability which requires FMLA leave, discipline for poor attendance may violate both of the laws.
• Job Restoration- Disabled employees may need to take FMLA leave from time to time. If the disabled employee takes an FMLA leave that is not considered an accommodation under the ADA, the employer can place him in his old job or an equivalent job without violating the FMLA. If the leave was an accommodation for the employee’s disability, the employee must be restored to his old job. An employer can refuse to return the employee to work following leave if the employee is unable to perform all of the essential functions of the job with or without accommodation.
• Reasonable accommodation/Interactive Process- Required under ADA, but not under the FMLA.
• Medical Examinations- Under both the FMLA and the ADA, an employer may ask for medical history information or may require the employee to undergo a medical examination as long as any information sought is necessary and related to the job. Such information is confidential and therefore must be kept in a separate file with restricted access.
• Light Duty Programs- Eligible employees have an absolute right to FMLA leave if they cannot perform any essential function of the job. Under the ADA, an employer can require participation in a light duty program.