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. 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, e.g., 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. An easement may be recorded in the public real estate records, however, recordation is not required. As a consequence, it is necessary to carefully physically inspect the land in question to determine if there are easements.
Easement owners have a legal right to maintain the easement and have a legal right of access across the easement. 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.
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? Appropriate reversionary language, anti-transfer or anti-assignment without consent language, and a surveyed legal description are critical landowner provisions.
Further, the professionally surveyed specific location legal description, with a precise width and possibly height or depth, should 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). The time period for adverse possession varies from state to state. 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.
There are several ways to legally terminate an easement. 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. Similarly, 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.
Keep in mind that there are non-surface easements, such as, creative air and light easements, which may be established, either for high-rise construction or for aesthetic purposes. Additionally, private parties can potentially contractually create solar easements to avoid blocking sunlight from reaching preexisting solar panels. 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? We anticipate court cases to come that will shed more light on the topic of drones.
This discussion provides a brief overview of a complex topic and is not intended to provide legal advice. Always consult an experienced real estate attorney in specific easement situations.
Source: American Land Title Association.