In commercial title insurance we occasionally run into problems with easements. In this article, we will talk about the most common problems we run into with easements in commercial transactions, as well as some tips for preventing these issues.
What is an Easement?
First, an easement is a right to use another’s land for a limited purpose. An example of an easement would be a utility company that was granted the right to run its power line across a property that it did not own. There are several problems we typically encounter with easements. Here are a few of the most common:
The use of incorrect legal descriptions or the lack of legal descriptions
The wrong parties signing the easement
A lack of clarity as to the purpose of the easement.
Preventing the Need to Correct the Easement in the Future
It’s very important to think of these details when drafting to avoid future problems or controversies as well as avoiding the need to redraft or amend the easement agreement sometime in the future. For example, we occasionally encounter problems where the future use of the land was not considered when the easement was drafted. At the time the easement was created it might have involved rural land – perhaps a driveway easement allowing a farmer to access a public road. Over time, the farmer may have sold his farmstead and the old farmstead was subdivided. The use of the old farmstead changed and perhaps it’s now used for single family homes or commercial use. That may not have been contemplated at the time the easement was drafted and could cause a number of problems.
One of those potential problems is that the easement then could be considered to be “overburdened.” This means that there are more people using the easement than was originally intended. Another potential problem is that the future use is not what was originally intended. In either case, an argument could be made that the easement is no longer valid because it has been “overburdened” or the use has changed.