What is an Access Easement Agreement
An access easement agreement is a legal arrangement between two parties, usually between an owner of real property and a person or entity wishing to use a portion of that property. This agreement is often recorded in the public land records to ensure enforceability, and describes the location and extent of the access granted.
The primary purpose of such an agreement is to create a legally binding right for the user of the easement to enter the property for a particular purpose. This right is not transferable after the agreement is terminated or expires, but it does bind future owners of the property and can pass from one owner to another , depending on the terms stated in the agreement. Further, this easement is specifically limited to the purpose or use for which the easement was granted, and may not be used for any other reason. The agreement itself explains the limitations on the use of the easement, as well as the remedies available to the grantor or owner of the property should the agreed-upon use not be followed.
Some common examples include access easement agreements that grant an easement to install or maintain a driveway, a sewer line, or utility line. Each of these examples demonstrates how the easement can be tailored to suit the specific needs of the parties involved.
Easement Types
Easements grant the right to one landowner to use another landowner’s property for a specific purpose. As discussed above, there are four main ways to create easement rights, and consequently a vast variety of easements. In this post we discuss the various types of easements and limitations on easement rights.
There are three main categories of easements: 1) appurtenant, 2) in gross, and 3) prescriptive. Easements can also be categorized as temporary or permanent.
Easements Appurtenants: Easements appurtenant relate to land, not an individual or business, meaning that the benefit of the easement runs with the land. For example, if you are granted an easement to use a portion of your neighbor’s land to cross over his property in order to reach your back yard, and your neighbor later sells the property to a third party, you are still entitled to the easement. Easements appurtenant are created in conveyances, usually in the deed itself, and survive conveyance of the underlying parcel. Easements appurtenant remain attached to the burdened and benefited parcels upon future conveyances.
Easements appurtenant may be either dominantly tenement (or dominant estate) or servient tenement (or servant estate). The dominant tenement is the land which uses the easement, and the servient tenement is the land burdened by the easement. The easement may be either exercised on the servient tenement or on a third-party property. The easement appurtenant option is the favored form of easement because it runs with the land, and will pass to new owners.
Easements in Gross: An easement in gross is personal to an individual or business, and the benefit of the easement does not run with the land. For example, if you are granted an easement to cross over your neighbor’s land in order to reach your property, and your neighbor sells his property, you would no longer be able to use the easement.
Easements in gross are usually created for the benefit of a utility company, such as where a utility company has granted itself an easement to access power lines. Easements in gross may be either personal or commercial. Commercial easements in gross run with the parcel to which the easement is appurtenant. Personal easements in gross may be terminated by death, incompetency, or conveyance by the holder of the easement.
Peaceable possession laws allow holders of prescriptive easements (discussed below) to bring a claim to establish a prescriptive easement for a period of time after the adverse use has ended.
Temporary and Permanent Easements There are also temporary and permanent easements. A temporary easement is for a specified period of time. For example, a temporary construction easement will deal with access to land for the purpose of doing construction or land development. It is important to implement temporary construction easements to grant construction companies the ability to do their work on neighboring properties, and avoid potential actions for trespass.
In New York, there are two types of temporary easements: common law temporary easements and statutory temporary easements. The common law temporary easement allows an adjoining property owner to temporarily occupy neighboring property, such as for the purpose of constructing a building or fence. The common law easement terminates at the end of the construction and is not enforceable after the acts are no longer necessary. The statutory temporary easement allows an adjoining property owner to temporarily occupy neighboring property, for the maintenance and repair of walls common to both property owners. The statutory temporary easement expires after a period of time, and may be renewed upon notice to other landowners.
Permanent easements allow for long-term use of a property. Examples include an easement that allows access to a roadway or driveway.
Access Easements: Access easements are a unique type of easement. An access easement is an easement defined solely by the right to access a parcel. In New York, access easements are implied or created based upon necessity or historic use. An access easement may also arise due to the agreement of the parties.
To establish an access easement, the claimant must show: 1) the landlocked or restricted parcel was originally part and parcel of the larger tract; 2) the necessity of the easement to access the landlocked lot; and 3) the access route over the servient lot is the only suitable route that can be provided.
Access easements also arise by historic use, as long as the use existed at the time of severance and was continuous and apparent. For example, if a lot has historically been used for purposes of travel to another property without a structure between the lots, use of the easement may be claimed.
In a recent case, the court ruled that travel over landlocked property was adequate to establish an access easement to travel to a public highway. Here the claimant owned landlocked property on a cul de sac, without access to the main road. The Court held that the claimant established the elements of an easement out of necessity. The Court also found that the claimant established an access right previously held as a natural right, but which has subsequently been lost.
Elements of an Access Easement Agreement
A Request by an HVAC technician, Trash Collection Service, or Utility Company for an easement over a portion of your property is quite common. On its face, it would appear to be pretty harmless, as long as you are not granting the party in possession rights to exclusively set up shop on your property. When is it safe to provide an Access Easement? What are the critical legal elements an Access Easement should contain before you sign and deliver it to a HVAC company?
While an Access Easement "may be very simple in form and may require no writing" – see 5 Thompson on Real Property by J. G. Eagle, vol. 1 ยง 53.06(g), it nevertheless should address certain legal elements, including: a description of the easement, the parties involved, the maintenance responsibilities, a description of the purpose for which the easement is granted, a requirement that the easement holder return the property back to its original state if the grantor so demands, and a provision which provides that if the holder fails to use the easement "for the purpose for which they were granted", or abandons them, the grantor has the option to revoke them.
For example, if the HVAC Technician is coming onto your property to maintain your compressor, and the compressor is located on the side of your property – you want the easement to state that. You also want to list the HVAC Company, by name, in the easement. While the terms of the easement may be standard throughout the industry, the parties, the location, the specific purpose, and the termination requirements should be clearly identified in the easement agreement. It is important to understand that just because an Access Easement is common-place in the industry, your Service Provider should not copy and paste from another company’s easement if the terms do not accurately reflect the original intention of the agreement.
Pros and Cons of Access Easements
Access easement agreements can provide both benefits and challenges for both grantors and grantees of such rights. The intent of access easement agreements is often to help promote the use of incorporated roads or paths as a means of reaching landlocked or inaccessible properties. Access easement agreements can provide routes that otherwise would be unavailable, at potentially lower costs than purchasing or constructing an access road.
Specifically, the purpose of an access easement is to ensure that there is a way for a grantee to reach a piece of land without going through a neighboring property to do so. From the grantor’s perspective, such easement is beneficial because it allows the grantor to make use of a choate right. Further, these agreements can help to resolve longstanding boundary disputes.
Despite the above, access easement agreements can also present obstacles. Depending on the terms of the agreement, grantees may encounter challenges based on their inability to erect structures such as fences along the access route. Additionally, these agreements are not always permanent. For instance, access easement agreements may only be effective during the life of an infrastructure project, such as when an oil field is active and must be accessed.
Creating an Access Easement Agreement
When it’s time to draft an access easement agreement, accuracy and attention to detail will set the stage for success. A poorly written agreement may result in a lot of headaches for everyone involved. For that reason, the following guidelines should be followed when drafting this type of easement.
A. Prepare a Legal Description for the Properties Involved
The legal description should include detailed information about the properties, using surveyed acreage when possible. This detail will ensure that all parties involved know exactly what to expect for the scope of the easement.
B. Collect the Necessary Information
If there are any schools, parks or churches in the area, additional protections may be required. For example, property owners may not want to allow anyone under the age of 12 to traverse their property within a certain time frame. Taking the time to collect all of the necessary information regarding the real estate before drafting the easement will result in added clarity later.
C . Agree on Terms and Conditions
While the landowners will be the ones to decide what terms and conditions they would like to agree upon, the inclusion of appropriate time-frames and details will prove invaluable during the negotiation process. For example, a landowner may wish to prohibit animals on his/her property. If one landowner has horses, an agreement should be made that protects his/her rights to maintain safety on the property (for example, by including items like signage and obvious fencing). In general, the details of the easement should be designed to protect landowners from any liability.
D. Plan for Changes
Every easement should include a plan for how to handle amendments. Without this type of clause, landowners might find themselves stuck with an easement that no longer accommodates their needs. Meanwhile, if someone fails to comply with the easement agreement, the situation could quickly become a legal quagmire without a plan for how to resolve the matter. For these reasons and so many more, it’s important to work with a knowledgeable lawyer to create the clearest possible easement agreement.
Disputes Related to Easements
Access easement disputes may arise over:
- The scope of the access easement.
- The proper means of access.
- Damage to access easement or dominant estate.
- Prescriptive easement issues.
- Ambiguity related to easements granted and reserved.
Easement Disputes Have Been Resolved In Many Different Ways:
- Building a new road to resolve an access easement dispute.
- Entry upon another’s property or easement for a public purpose, such as road construction.
- A survey accompanied by discussions and negotiations to resolve the conflict.
- A notice of an easement conflict and an opportunity to enter upon or cross the land as a guest for an inspection.
- Entry by a public official to evaluate damage to an access easement/right-of-way, and preparation of plans for repair of the damage.
- A summary judgment motion seeking damages, specific performance, or injunctive relief under the easement deed.
- A lawsuit or counterclaim for seven year, prescriptive easement for drilling a well across another’s easement (where the document did not specifically grant the right to drill a well), or maintenance of a pipeline, and condemnation by the State of Pennsylvania and reversion of the adverse possession.
- A suit to quiet title to a right-of-way, easement, or right to a road or crossroad.
- A suit seeking specific performance and monetary damages for trespass and conversion for a trespass based on severing a broken strand of a fence at a point in the middle while chaining the strand on both sides of a break in the fence, constructed by the principal of an agency, with the failure to initiate the repossession of the truck, and to terminate the agency relationship on or before a time when a neighbor asserted his rights against the truck.
- An arbitration case involving a dispute over the use of an expired pipeline right of way (without a finding of fraud, tort, or breach of fiduciary duty).
- A lawsuit seeking to have the easement vest in the dominant estate (in which case a railroad acquired interests in a right of way along a 1.09-mile span of the Tennessee Valley Railroad).
Associated Industries, Inc. v. Tennessee Valley Railway Authority RE-REMAND, 178 S.W.3d 705, 706 (Tenn. App. 2004)
Case Studies and Examples
One notable case involving the failure to uphold easements as intended involves the TNHT LLC v. 420 Fifth Ave. Associates case, in which access easements were created relevant to commercial real estate in New York City. In this matter, there was an original easement over a certain staircase that allowed for free and clear access to the basement area of the adjoining buildings. However, when the owners of the three buildings in question changed hands, the new owners did not allow each property owner free access to the basement area of their respective lots, making it difficult and burdensome to run all three lots as they had in the past.
In this situation, the previous owners who had originally entered into the easement agreement had intended for all three lots to have equal access rights to the basement area in order to easily conduct business as they previously did. However, the defendants who purchased the buildings went against the original terms of the agreement, forcing the plaintiffs to seek legal action to ensure that their rights remained intact .
Another recent example involves the United States’ acquisition of real property for various construction projects inside Washington, D.C. by eminent domain. Although the overall strength of the federal government in compelling private citizens to give up property to the government cannot be understated, there are often plenty of opportunities for individuals and corporations to negotiate easement agreements to utilize parts of their property in exchange for financial compensation. In addition, a third party can purchase or lease an easement over a property from an owner’s local government, and thereby help increase public access, enhance sustainability, and create environmentally responsible connectivity, among other benefits.
It is not always necessary to involve an attorney in creating or entering into an easement agreement, but as with any legal matter, the advice of an experienced lawyer can help your situation to propertly address and resolve prior to any formal matter.