Updated: Jun 23, 2020
An easement is a non-possessory interest in land owned by another. The holder of the easement interest has limited use or enjoyment of the land without interference from the property owner. The holder of the easement (the person or property benefiting from the easement) is known as the dominant estate. The property owner whose land the easement is on is the servient estate.
Easements can be used for a variety of reasons. A couple of common examples of easements are utility easements, access easements and right of way easements. Utility easements are used by utility companies to run install, maintain and operate telephone poles and wires or underground water and sewer pipes. An access easement may be used if a property is landlocked from a public road and the easement is created to give access to the landlocked property from the public road. Right of way easements can be used to grant pedestrians a right of way over a person’s property to reach a lake or to grant someone the right to herd cattle over their property.
The creation of easements can be done in multiple ways, such as by express grant, implication, and prescription. Express grant, discussed in more detail below, is an easement created in writing. An easement by implication is not in writing; rather, it is created by the circumstances. The circumstances that generally create an easement by implication are a necessity, like being landlocked, or by prior use. An easement by prescription is an easement created in a similar matter to adverse possession.
An express easement is a grant of an easement made through a written document. The common forms of documents used to grant an easement are an easement agreement, deed, will, mortgage or a declaration of covenants, conditions and restrictions. Easements are governed by the statute of frauds; meaning, they must be in a signed writing to be enforceable. However, an oral agreement may be enforceable if there is partial performance and consideration. Generally, you will record your express easement in the register of deeds.
There are several considerations your attorney should consider while drafting your easement documents. The first consideration is the location, which should be precisely drafted. The dominant estate will try to draft the agreement to expand the location as much as possible while the servient estate shall try to limit the location to the least amount of property truly necessary for the purpose of the easement.
Further, what is the purpose, or use, of the easement? Will the easement be private or public, and if private, is it exclusive? Does the use require the easement to be drafted as an affirmative or negative easement? Is the use something that can be limited in time, or does the easement need to be perpetual? These are all questions that a well drafted express easement will answer. Again, the servient estate should negotiate the easement document to limit the use in scope to the least necessary to fulfill the purpose of the easement, including adding any time limitations. The dominant estate may try to do the opposite and leave the use of the easement as open-ended as possible not to restrict its possibilities.
Moreover, there are additional clauses that need to be negotiated in an express easement. These clauses include shifting which party is liable for third parties on the easement. Experienced attorneys can help you limit your liability in the drafting documents. Which party will have the duty to maintain, repair and restore the easement? There are two schools of thought here: (1) you don’t want to be stuck with the expense and time of having to maintain and repair the easement and (2) if you want something done right you need to do it yourself. The school of thought used to negotiate your easement paperwork depends on the facts of your case, what is the purpose of the easement, where is it located on the servient estate and what is the servient estate used for. Finally, whether a party is required to maintain general liability insurance for the easement is another important clause to consider.
This was a brief introduction to drafting express easements and we hope it helps you gain a better understanding of the task at hand. If you need help with drafting an easement, do not hesitate to reach out to the attorneys at Blink Law.