Easements are quite common in the world of commercial real estate, and they can make business or property access much more simple and streamlined. It may seem like the creation of an easement should be straightforward enough, especially if you and the other party can come to an agreement, but there are likely some details being overlooked in the process, and that can cause trouble for you down the road. In today’s blog, we take a closer look at five factors that could be overlooked if you don’t work with a title company to create your commercial easement agreement.
Overlooked Easement Aspects
You can learn more about easements by clicking around on some of our previous blogs, but essentially they spell out how one party (the benefactee) can access another party’s land (the benefactor). Sometimes the land that is outlined in the easement is referred to as the benefitted property when referring to how the benefactee will use the land and the burdened property when referencing the benefactor’s land use. For example, a farmer may allow a neighbor to walk through their fields in order to access public hunting land on the other side. The farmer would be the benefactor and the path they are offering would be the burdened property, while the named parties who can access this path would be the benefactee, and this path would be considered the benefited property.
Now that you have had a brief overview of how easements work, let’s explore some aspects that could be overlooked when two parties are working to create an easement agreement.
-
Specific Location - It helps to be incredibly specific when drafting an easement. To use the above example, a farmer wouldn’t just want to draft an easement that says the benefactee can access their farmland from the west side of their property until they reach the public hunting ground. You will want to chart out a very specific path for this easement so that there isn’t any confusion or ambiguity as to how someone else can access your property.
-
Duration - You’ll also want to spell out how long the easement will remain in place. You can opt to have it remain in place until the owner sells their property, or you can write that easement would survive in the event that a property is sold to someone else. You can also write down the specifics for how the easement could be terminated should the benefactor wish to end easement access.
-
Who Has Access - If you’re drafting an exclusive easement, you’ll want to be very specific as to who has access to the easement. You may opt to only name a couple of people, or you may allow friends and family of a specific person to have access. Sometimes easements are non-exclusive, like if you were drafting an easement for a shared parking lot for a commercial business, and you won’t need to be as specific as to who has rightful access to the property. But if you’re drafting an exclusive easement, make sure that everyone involved knows who has rightful access to use the easement.
-
Purpose - You’ll want to define a purpose in the easement as well. Again, to use the farmer example, you’ll want to spell out why a party has rightful access to your land. They can’t just access your land to dump trash or throw a party, they are entitled to access your property along a specific route in order to access public hunting land on the other side. Any use of the property outside of this purpose would be a violation of the easement agreement.
-
Maintenance and Improvements - Finally, you’ll want to clearly define how any maintenance along the shared accessway is handled. Let’s say multiple businesses use a shared driveway as part of an easement agreement. That easement should include who pays for necessary maintenance or improvements to the roadway. Unless it’s clearly defined, the property owner may be on the hook for these repairs, even if they aren’t the ones predominantly using the easement route. Should maintenance or improvements be expected in the future, you’ll want to clarify who will pay the bill for these improvements.
One way to ensure that all of these factors are considered and your easement agreement is fair for all parties is by working with a title service company like Commercial Partners. Let us make sure that your interests are protected and nothing is missed when drafting an easement. For more information, or for help with a different aspect of commercial real estate, reach out to the team at Commercial Partners today at (612) 337-2470.