When purchasing property, buyers are usually more concerned about easements that cross or burden the property they are considering than they are about the nature and scope of the benefiting easement that allows them to access the property. When the time comes for closing, the closing agent shows the buyer a map and the portion of the title report that identifies the easements crossing the property (and other clouds on the title). However, unless there is some type of maintenance agreement, the easement that benefits the subject property (and provides access) will usually not appear on the title report. It takes additional research to locate those documents and read the full content and legal description of the easement.
The following are some important considerations when reviewing an easement document:
1. Is the legal description of both the benefitted property and the burdened property, as well as the exact location of the easement, clear and accurate?
2. Does the language specify that it is an appurtenant easement that runs with the land rather than one granted only to an individual or entity? Just because an easement runs with the land does not necessarily mean it is perpetual unless that is specifically stated. Ideally, the easement should be irrevocable, perpetual, and transferable.
3. Is the permitted use clearly defined, such as ingress, egress, and utilities, or is there other language that clearly defines the purpose and scope of the easement? Is the easement intended to serve a single residence, or does it allow for expanded uses such as a future subdivision, guests, contractors, or commercial activities?
4. Does it specify construction specifications, as well as repair and maintenance responsibilities?
5. Does it address issues such as gates, speed bumps, parallel fencing, the use of ORVs or ATVs, or potential damage caused by heavy commercial truck traffic?
In a recent case, a property owner installed a couple of gates at various points along an easement road located on their property. The road also served as the driveway for an adjoining property owner. The gates were installed to keep out unauthorized users who had been crossing the property illegally to access adjoining state land for recreational purposes. The owner of the benefitted property became very upset because they would now have to open and close the gates each time they entered or exited their property. They were disappointed to learn that the servient property owner had the legal right to install the gates, provided the benefited property owner could still reasonably access their property.