April 16, 2018
Author: Robert Hughes
Organization: Hirschler Fleischer
An easement is the right to use someone else’s property. They come in endless variety: easements for utilities, access (ingress and egress), parking, view, signs, driveways, maintenance… the list goes on and on. This article outlines some of the basic issues one must keep in mind when drafting or negotiating easements. This article is by no means exhaustive. You should consult an attorney when drafting easement documents.
Burdens and Benefits.
Every easement burdens some particular property. Often, but not always, an easement benefits some particular property. For example, when the owner of one parcel of land has an easement to cross adjacent land to reach a road. This article uses the term “burdened property” to refer to the property burdened by an easement, and “benefited property” to refer to the property benefited by an easement.
When an easement benefits particular property, it is called an “easement appurtenant.” Sometimes, however, an easement does not benefit any particular property, but instead benefits a person or entity. This is commonly seen with utility easements. For example, when the power company has a power line easement across your property, the easement probably benefits the power company itself, and not any particular property. This kind of easement is called an “easement in gross.”
Use care to properly identify the parties to the easement document. Every owner of the burdened property must join to grant the easement. It is often prudent to have the burdened property’s title checked to confirm ownership. If the burdened property is leased or ground leased, then it may be necessary to have the tenants join in granting the easement. If the easement is an easement appurtenant, then the benefited property should be clearly identified. If the easement is an easement in gross, use care in identifying the proper grantee. If there are persons other than the grantee that are intended to benefit from the easement, such as the grantee’s customers, agents, employees, contractors, guests, etc., then those persons should be clearly identified.
The burdened property – and benefited property, if applicable – should be clearly identified. The clearest way to do this is to identify the properties by their legal descriptions. The easement document should clearly state that the easement “runs with the land” of the burdened property, and, if applicable, the benefited property. Permanent vs. Temporary. The easement document should specify whether the easement is a permanent (or “perpetual”) easement or a temporary easement, and if temporary, when it terminates.
One should put significant thought into exactly what the purpose of the easement is, and make sure this purpose is clearly stated. Often the owner of the burdened property will want the purpose of the easement to be drafted narrowly, in order to maximize her enjoyment of her property. On the other hand, the beneficiary of the easement will often want the easement’s purpose to be drafted broadly, in order to give him maximum flexibility. For example, in the case of a utilities easement, the owner of the burdened property may want to limit what particular utilities the easement may be used for – power company facilities, for instance, but not telecommunications facilities. Or he may want to limit the easement to underground facilities only, as opposed to overhead facilities. In order to maximize flexibility, the beneficiary of an access easement may want to specify that he has the right to use the easement for vehicular and pedestrian access.
The grantor of the easement may want to reserve the right to use the easement area for some particular purpose. If so, then that reservation should be clearly stated in the easement document. For example, in the case of a utility easement, the grantor may want to reserve the right to use the easement area for agricultural purposes or to erect fences. Or in the case of an access easement, the grantor may want to reserve the right to use the easement area for the grantor’s own access.
In Virginia, when an easement is “exclusive,” that means that the beneficiary of the easement has the exclusive right to use the easement for the named purpose. The easement document should specify whether the easement is exclusive or non-exclusive.
Width and Location.
Many easements, especially utility easements, encumber a strip of uniform width running across the burdened property. With such easements, it is often useful to specify the width of the easement. Also, the easement document should clearly identify the location of the easement on the burdened property. The least ambiguous way to do this is to attach a plat, or at least a drawing, of the burdened property showing exactly where the easement is located. It can also be very helpful to describe the specific part of the burdened property that is burdened by the easement with a metes and bounds legal description. The owner of the burdened parcel may want the right to relocate the easement. If so, the easement document should specify who bears the expenses of such relocation.
The easement document should specify who is responsible for maintenance, repair and replacement of improvements located in the easement, and to what standard such improvements must be maintained. If maintenance costs are to be shared, the easement document should specify how each party’s share is to be calculated.
Consider providing in the easement document that the owners of the burdened and benefited properties shall have no personal liability for acts or omissions that occur before or after their period of ownership of such parcels. The owner of the burdened property may want the easement beneficiary to indemnify him for acts, omissions, negligence and willful misconduct of the easement beneficiary and the easement beneficiary’s customers, guests, agents, employees, contractors, other permitted users, etc. In addition, the owner of the burdened property may want the easement beneficiary to obtain liability insurance naming the owner of the burdened property as an additional insured.
May the grantee assign the easement? For easements appurtenant, this is rarely an issue, because the easement runs with the benefited property and typically never needs to be assigned. The issue of assignability is much more important with easements in gross. The beneficiary of an easement in gross may want the right to assign his easement rights with, or share them with, others. The owner of the burdened property may want to limit such rights.
The easement document should describe what constitutes a default under the easement and what the remedies are for the party defaulted against. For example, if the easement beneficiary defaults, can the owner of the burdened property terminate the easement altogether? (Most easement beneficiaries would object to this.) Or would the remedies be limited to monetary damages or injunctive relief? Consider whether you want to give the parties the rights to written notice of, and opportunity to cure, any default. Specify whether the defaulting party must pay the attorneys’ fees and costs of the other party.
Specify where notices to each party should be sent. This can require some thought, if the easement is truly a perpetual easement.
The easement beneficiary will want the holders of all recorded, preexisting mortgages, deeds of trust and other liens affecting the burdened property (i) to consent to the granting of the easement and (ii) to subordinate their rights to the easement. Often, the granting of easements by a property owner without his lender’s permission constitutes an event of default under his mortgage or deed of trust. In that case, getting the lender’s consent is important. Also, if a lender or other lienholder does not subordinate its lien to the easement, then the easement may be wiped out, if there is a foreclosure or judicial sale. That would leave the easement beneficiary with no easement at all.
Sources: Jesse S. Ishikawa, A Checklist for Drafting Easements, The Practical Real Estate Lawyer, November 2005, at 9.