What is an Easement Agreement?
Easement agreements are a legal mechanism in property law that allow a party to obtain a certain property right to use an area of land for a particular purpose. These agreements are legally binding documents that will detail the responsibilities and rights of both property owners. It is very common for an easement agreement to be confused with a license agreement, however, there is a key difference. While a license agreement allows for a party to use a piece of land for a specified duration of time, an easement agreement involves transferring the land from one property owner to another in a legally binding manner. Therefore , a license agreement does not require a transfer of land, whereas an easement agreement does. Other ways to further differentiate the two would be to say that easement agreements deal with the associated interests and rights in a land title, whereas license agreements do not. This point is very important to note, since easement agreements hold greater value than license agreements. The latter does not take an interest in land or property; rather, it reflects a contractual relationship between the two parties involved. In the case of an easement agreement, these related rights can be broad and vary between the owners and relevant governing body.
Types of Easement Agreements
Easement agreements can either be appurtenant or in gross. Appurtenant easements are those that are attached to a particular parcel of land and benefit the owner of the tract wherein it exists for the benefit of a particular parcel of land, or a parcel of land which is continuously owned by the same owner to the benefit of that parcel. The right to the easement automatically passes to each transferee of the dominant estate. In other words, the easement "runs with the land". An example of an appurtenant easement is where an adjoining property owner provides access to a private alleyway for ingress and egress to the adjacent parcel.
Easements in gross are defined as personal rights that can be sold independent of land ownership. For example, a utility company may have an easement in gross over certain property allowing it access to the property in order to maintain its equipment. Easements in gross are non-possessory interests in the servient estate, and they stop existing upon transfer of the servient estate unless there are special circumstances, such as (i) personal privilege or observation of a legal right conferred by public law, (ii) license, or (iii) when the easement is so highly personal and would be difficult to prove if transferred, or from storing certain property, such as oil and gas well, in, on or under the easement.
Creation of Easements
Easements can be created by express agreement between parties. For example, a landowner may grant to another party an easement for specific purposes and for a limited duration, or for so long as the grantee owns the dominant tenement (the adjoining property).
Such an express easement must identify the property to be burdened, the purpose of the easement, and the parties involved. A freehold title deed is sufficient to create an easement.
An easement may also be granted orally or implied by operation of law for purposes such as necessity when the owner of two contiguous properties can show that the easement is an absolute necessity for the beneficial use and enjoyment of the dominant tenement (the property seeking the easement). There must be a common ownership of both properties before the separation.
If the limiting factors are adjoinment or necessity, then the creation of the easement is unnecessary (and in fact, often not a good idea) when the two parcels of property involved have a common owner, even though they may be geographically separated. In order to create an easement, it is not necessary that the parties need to own adjoining property. Actual or precipitate use of the easement itself coupled with the nature of the use may support the inference that an easement by necessity was intended.
If the use arose out of necessity, the necessity must exist at the time of the conveyance and extent of existing easement preceding severance governs the manner in which it will be used after severance of the two parcels otherwise in common ownership.
Easements may also be created based on prescription (an implied grant or contract supported by possession and showing a dominant intent to claim a right in the nature of an easement). To confirm the "prescriptive" easement, certain factors must be met in order to transfer the burdened tenement. These factors include exclusive use of the easement; length of time (20 years); actual (not constructive) use of the burdened property; open, visible and continued nature of the use; and it is hostile and adverse to the true owner of the property.
Under the doctrine of lost modern grant a continued and uninterrupted use alone for 20 years under a claim of right serves to establish an easement. The principal acts alone of walking over the easement and leaving it undisturbed are sufficient to create an easement by grant, and an express easement is not required. This doctrine presumes (but does not require) knowledge of the easement on the part of the owner of the servient tenement.
Easements may also be created based on prescription but where the user has no claim of right. This action is limited to trespass. The duration of the trespass is generally different in time from the prescriptive easement, i.e., greater than 20 years.
Lastly, an easement may be implied from prior continuous and apparent use of the property divided into two parts. The existence of this doctrine assumes that the burdened property can only be reasonably enjoyed if an easement is implied.
Rights and Obligations Under The Law
The legal rights and responsibilities of the parties involved will be determined by the language of the easement agreement. For instance, most of the Grantors’ rights are implied by law, i.e. to enjoy reasonable use of the servient tenement. The servient tenement is the property that is subject to the easement on the basis of the public’s right to convenience regardless of the location of the easement. In general, the primary legal privilege given to Grantors are:
The legal privileges of the Grantee are generally more positive in nature. These privileges are spelled out in the easement agreement. Some of the Grantees are:
It is primarily the duty of the Grantor to refrain from interfering with the Grantee’s use of the easement. It is mostly the Grantee’s duty to keep the easement in proper condition. In fact, above all other duties, the Grantee must do nothing to injure the Grantor’s interests. There is a similar duty of good faith and reasonability placed on Grantors. From a theoretical point of view, the legal duties can be divided into two enormous categories. The duties that that can be described as negative rights are basically undertakings that the party bound by the easement can’t do. The positive rights can be described as positive duties or powers. The biggest problem, however, is in the area of defining what is reasonable when the grant provides broad use rights, which can be depended upon for a particular use of the grant.
Disputing Easement Agreements
Unfortunately, parties sometimes dispute what their easement agreement authorizes. Clarifying whether a proposed use is permissible, and determining what uses have been permitted in the past, can avoid disputes later and save significant money, especially when a pipeline or other construction has begun. Even in the absence of an actual dispute, the parties may just want to establish a clear record in the event of a dispute. To address potential and existing disputes, and mold an easement to meet changing circumstances, parties can enter into clarifying agreements. The Act defines "easement" very broadly to include "all limitations on or powers over the use of land, and interests in or rights to land," as well as transfers "that municipalities may make in land." An entity may be expressly authorized by a statute to take an easement by condemnation. For instance, waterworks, gas pipelines and electric companies may avail themselves of a comprehensive set of procedures "for acquisition of property" in the Municipal Government Code, Tenn. Code Ann . §§ 6-54-113. Each Tennessee easement statute must be examined in the context of its enabling statute to define the easement’s scope. Tennessee cases upholding condemnation of easements, under various statutes, have included a statutory right to "enter upon lands and construct and lay down," for example, "water pipes, gas pipes, air pipes and pipes for other purposes," including pipe wiring for electric light, and also "to do all things that are necessary to complete the construction and improvements."
A claim of property to such a limited use has succeeded despite that the easement holder later expanded its use. The court noted that "[a]wning to common ownership of the servient estate," the owner could not expand the scope of the easement’s use. However, as the municipal right "to widen the street created an implied permission" for the additional uses, the easement was expanded by use, and the easement holder was not liable for the value of the additional construction after expiration of the period of years specified in the easement.
How To End An Easement Agreement
Contemplate a situation where you have a property that has been used for a long time with the consent of the adjoining landowner, but you have never had any agreement regarding your use of that land. Without an easement agreement, recent case law suggests that a prescriptive easement typically does not arise because it is necessary to have not only open and obvious use of the land but also a claim of right to that use. So the fact that the use has been lengthy and purposeful might not be enough.
How can the easement come to an end? The primary way for an easement to end, so long as it has not been extinguished by abandonment or estoppel before that point, is through the mutual agreement of the parties, which does not necessarily require new consideration. An easement may also come to an end because the owner of the dominant estate simply uses the property in a way that is inconsistent with the easement. The classic example of this is an easement for a lane of ingress and egress terminating by building a wall at the end of the path. Inconsistent use can also terminate a license, by ultra vires use. Another place to look for the termination of an easement is under common law doctrines, such as abandonment and estoppel.
Another way for the grantor or owners of the servient estate to seek to end an easement is through an action in constructive or actual adverse possession of the property. In that case, they would use the land in a way that is truly exclusive and adverse to the rights of the easement holder and do so for as many years as are required under the statute you are considering. Additionally, termination of the easement can happen under the statutory waiver statutes in Pennsylvania.
Tips For Drafting An Easement Agreement
Drafting a good easement agreement, like any other type of contract, requires an understanding of the elements that make those contracts legally binding. The elements for an enforceable, legally valid easement are: The last element, intention, can be a matter of interpretation, however, and so it is critically important to focus your drafting on clarity. You can better ensure that a grantor’s intention is clearly expressed and understood, and that it is enforceable, by limiting the scope of an easement in the granting clause. A well-drafted easement will carefully tailor the scope to the purpose of the easement, and will thus oblige the grantee to use the property only as agreed.
Drafting an easement is different than just drafting a contract. Easements are by their nature intended to run with the land, and thus should address the entire parcel in both the granting and description portions of the agreement. The parcel will hold the easement even if the owner relinquishes the property . Thus, in addition to the conventional advice about drafting contracts, easement drafters must also keep in mind the following tips: Any scrivener or drafter of contracts will attest that there are any number of reasons why one might not include all of the facts you have at your disposal in the contract, but the drafter should also place an equal value on including these details in the easement. Extra facts in an easement can work to prevent easement holders from abusing the right to enter and possess the land. It is better to err on the side of including unnecessary facts than it is to leave the description vague or lacking in important details. More information is not necessarily better, however, and it is critical to avoid using conclusory statements in your drafting. Conclusory statements lack sufficient details and do not reflect the actual intent of the parties when used in a contract. The extent of this statement is beyond the immediate scope of the piece, but is nonetheless important to keep in mind.