January 28, 2016 | by Brad Reid, Senior Scholar, Dean Institute for Corporate Governance and Integrity, Libscom University
If you own land, a house, or commercial property and have external utility service, such as electricity, water, or gas, there is frequently an easement on your property, at least to the meter. If there is a driveway or road from a public road crossing your land to a house or field behind your land, this access may be an easement. This comment provides an incomplete educational introduction to easements. Always consult an experienced attorney in all easement, access, and real estate situations.
An easement is a real estate ownership right (an "encumbrance on the title") granted to an individual or entity to make a limited, but typically indefinite, use of the land of another. It is not a right of occupancy as such or a right to profit from the land. It is legally considered an "incorporeal" (not physical) right. An easement that benefits adjoining property, such as a driveway, is termed an "appurtenant easement." An easement that does not benefit a particular tract of land, such as a gas transmission pipeline, is termed an "easement in gross." A "license" is a form of limited revocable permission to use property (for example, enter a theater and view a film) that does not impact the title to the property. A "lease" allows a tenant a temporary exclusive right of occupancy (for example, an apartment).
An easement may be recorded in the public real estate records or other regulatory agency records; however, an easement may exist without recordation. Consequently, it is necessary to carefully physically inspect the land in question to determine if there are easements. A significant legal issue in sales and usage questions is whether or not the landowner knew or should have known of the existence of the easement. This may be critical in real estate development and construction projects.
Easement owners have a legal right to maintain the easement and have a legal right of access across the easement. An easement owner's removal of trees, limbs, and fences may be controversial, but these actions are typically lawful. However, one should always review the original documents that granted the easement since there may be special provisions.
If the "easement" is created by a document, does this document convey title (ownership) to the land in question or only a right to use the land? Railroads, for example, typically acquired title to the strip of land where tracks were located. Sometimes, an easement may be implied, as the right of a landowner to have ground access to a public road by crossing the land that in the history of conveyances (sales) cut the owner off from access to the road. If one sells acreage that will not have a border adjoining a public road, it is desirable to survey and describe in a document an easement accessing the public road. This will prevent litigation.
If a landowner is selling the right to an easement, such as the right to build a pipeline, the precise wording of a proposed document should be reviewed by an experienced real estate attorney. Fundamentally, is the document a deed or an easement? Does the document suggest multiple construction projects many occur, for example, by stating "pipeline or pipelines" or "fiber optic cables," or "any lawful use?" Does the document extinguish the easement and revert (automatically transfer) all rights back to the landowner if actual construction is not undertaken within a specified time period? May the easement be transferred to a third party without the landowner's consent? Is a surveyed location incorporated into the document or is it a blanket grant? In my opinion, appropriate reversionary language, anti-transfer or anti-assignment without consent language, and a surveyed legal description are critical landowner provisions.
If is very important that a professionally surveyed specific location legal description, with a precise width and possibly height or depth, be incorporated into the document. Otherwise, the easement could potentially be located anywhere on the tract of land that it crosses. Location vagueness will, as a practical matter, prevent future residential or commercial construction on the land until the easement's location is precisely specified. A mortgage lender will not finance a project when there is a possibility that the preexisting easement owner might construct a pipeline, for example, through a proposed building. Even if a regulatory agency might not allow such construction, lenders fear uncertainty and open-ended potential expenses. Lenders will likely condition any loan on corrective action. Correcting easement location problems may be expensive and time consuming when undertaken after the fact.
Depending on state court decisions, irrevocable easements in the nature of a public right of way may be created by long-term public use (adverse possession), such as may occur with access to a river or lake. The time period is determined by state statute and may range from 5 to 25 years, depending upon the state. Ten years is a common time. If one does not want an individual crossing one's land to later claim an absolute legal right to do so, it is important to obtain a signed document in which the individual acknowledges that she is receiving from the owner a limited revocable license to make this use, claims no ownership rights, and acknowledges that the use many be terminated at any time, for any reason, without prior notice from the owner. Consult an experienced attorney.
A proposed subdivision map or plat that shows incomplete streets or easements might be relied upon by potential purchasers of building lots. When there is, for example, a verbal representation by the sellers to potential buyers that the mapped improvements will be constructed, there may be an "easement by estoppel" created. The seller is "stopped" from denying the truthfulness of her representations in the interest of justice when the buyer justifiably relied upon the representations. An easement by estoppel may exist even if the map or plat was never officially dedicated to public use or recorded in the public records.
When purchasing, be cautious concerning promises by developers to construct community infrastructure such as roads, parking lots, nature trails, lakes, and recreational facilities. Lots may be sold with fraudulent promises. Even an honest developer may experience financial distress or bankruptcy and be unable to complete the promised facilities. May these promises be bonded or otherwise collateralized? If constructed, how will they be maintained and maintenance expenses paid? Consult an experienced attorney before purchasing.
Private subdivision roads may or may not be public roads. Frequently they are not officially dedicated to public use. Some states allow an implied dedication to public use and others do not. Intent to dedicate a road to public use depends upon the total factual circumstances. For example, a gated road with limited access would appear to be private. However, soliciting and utilizing public road maintenance suggests public dedication. Does the road appear on official maps of public roads? Does a statute create a public road after a time period of public use and public maintenance? Investigate with due diligence.
Many states have statutes allowing public access to beaches and rivers for recreation purposes. Local government may have the statutory authority to create easements across otherwise private property to allow the public to reach the beach or river. These actions are frequently controversial with landowners who attempt to assert, usually unsuccessfully, that an unlawful taking of private property has occurred.
There are several ways to legally terminate an easement and this brief comment does not list them all. Abandonment may occur by the action of a public authority or private owner. Public street closings always attract controversy, even if all the adjoining landowners desire the closure. It is difficult to prove, in the absence of a documented abandonment, that a private easement has been abandoned. Adverse possession (ownership created by unchallenged usage) of an easement may occur when items such as buildings or fences are constructed on the easement and are unchallenged for a statutorily specified period of time, for example, ten years.
Most states require that the seller of undeveloped land notify potential buyers of the existence of pipelines that cross the property. Many statutes give the purchaser a limited cancellation right if the notice is not properly given. In like manner, statutes may prohibit locating buildings or undertaking any construction over a pipeline easement. Deteriorating or improperly maintained pipelines may create serious public safety issues and may be subject to dual state and federal regulatory authority. For example, the federal "Pipeline and Hazardous Materials Safety Administration" (PHMSA) is one such agency.
While this comment has focused on traditional surface easements, creative air and light easements may be established, either for high-rise construction or for aesthetic purposes. An old English common law legal doctrine, "ancient lights," is occasionally applied to prevent the shading of property by adjoining construction or the erection of "spite fences" intended to block air, light, or views.
Many states have legislation allowing private parties to contractually create solar easements. These statutes frequently require written and publicly recorded documents and may additionally restrict common law remedies. A few states have legislation allowing the government to restrict construction that would block sunlight from reaching preexisting solar panels. This is a kind of "negative easement" since it restricts the rights of an adjoining landowner.
Drones are creating a new set of legal issues. Traditionally, airplanes are allowed to fly at a "reasonable" altitude over private property without obtaining landowner permission or purchasing an easement. Drones typically fly much lower. Is this trespassing? What governmental regulation, if any, is appropriate? This is unfolding and, like any new technology, requires new ways of legal thinking.
This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced real estate attorney in specific easement situations.