I’ve Been Approached to Grant an Easement – Now What?

Published in the Firelands Farmer on Monday, September 16, 2013

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By:  Mark Coriell

Many farmers are confronted with an “easement” issue at some point in their career, whether it is due to access for a neighboring farmer, a new project for a utility company, a drainage problem, or any number of other issues that may arise.  An easement is frequently presented as a simple request for permission to use a portion of a farmer’s land for something relatively benign.  However, it’s important to understand exactly what’s being asked of you as a landowner before granting that easement and what provisions to be aware of when you’re approached.  Consider the following:

What is an easement, anyway?  Simply put, an easement is an interest in land.  A grant of an easement is a transfer of an interest in your land to another individual or company so that they can use your land for some purpose.  In most cases, that easement is designed to run with the land and be binding upon each party’s heirs, successors, personal representatives and assigns.  In other words, once the easement is granted, the document gets recorded with the local county recorder and it stays with the land forever, or until parties may agree later to remove it.

How much of my land does the easement affect?  As with many things in the law:  it depends.  When an easement is prepared for recording, a description of the property must be attached to the easement document in order for it to be accepted by county officials.   That’s the first place to look.  Also, the easement document itself may or may not limit the space over which the person can utilize the easement.   From a landowner’s perspective, it is important that the easement document be as specific as possible with respect to the location of the easement.

Can I still use the portion of my land over which the easement has been granted?  Again, it depends.  An easement will generally be either “exclusive” or “non-exclusive.”  If the grant of the easement is exclusive, the landowner wouldn’t have a right to use the portion of the land over which the easement is granted.  If it’s non-exclusive, both parties can use the land simultaneously.

Who maintains the area of property over which the easement is granted?  It depends.  (Are you noticing a trend?).  In my opinion, this is one of the issues that most frequently leads to disputes among the parties to an easement document.   In some cases it might seem obvious:  of course the gas company is going to want to maintain its gas line, and they’re probably the only ones qualified to make the repairs.  However, it can get a little more complex when you’ve granted someone the right to move equipment over a portion of your property to reach a neighboring farm.   What happens when the path becomes worn and needs stone work or other construction to prevent severe erosion or drainage problems?  It might not be so obvious who is responsible.   The easement document itself should, as specifically as possible, spell out the responsibilities of each party to the easement.

There are certainly more issues than these that can arise when negotiating an easement, but the above questions are a good starting point if you’re ever approached.

Mark Coriell is an attorney at Laycock & Coriell in Norwalk.  He practices primarily in estate planning, business transactions, real estate, elder law and probate.  This article is intended as general information only and may not be construed as legal advice.