Ask Tom

My property shares easement with other buildings,  what should I know 
about this arrangement?

Easements are similar to a lease in that the owner allows someone else to use the owner’s property, but they are different because the beneficiary of the easement usually does not have the exclusive right to use and occupy the property to the exclusion of everyone else. While a person seeking an easement will usually pay the owner for the easement, it is almost always a one-time payment. Sometimes, the beneficiary of the easement will not have to pay anything for the easement and occasionally the beneficiary of the easement will pay for the easement in installments.

The first element required to create an easement is to have two separate owners of property. Creation of an easement requires a dominant estate, the land which will be benefited by the easement, and a serviant estate, the land which the owner of the other property may use. Because there must be two separate estates to create an easement the owner of property cannot grant an easement to himself.

An easement can be positive, allowing the owner of the dominant estate to use the serviant estate, such as a driveway or utility easement; or it can be negative, such as the owner of the serviant estate agreeing not to erect a building which would block the view from the dominant estate. 

An easement can be created in a couple of different ways. It can be expressly created, meaning that there is a document where the owner of the serviant estate grants the easement to the owner of the dominant estate.

Another way an easement can be created is by implication. An example would be where one party owns one tract of land and uses a long driveway to gain access to a building. If the owner sells off half of the land including the driveway and there is no other reasonable means of access, the original owner will retain an easement by implication to use the driveway.

The final means by which an easement can be created is analogous to adverse possession. The owner of the dominant estate must use an easement across the serviant estate continuously, uninterruptedly, openly and notoriously.

Some issues to consider when dealing with easements are, has the easement terminated and can it be relocated? Usually one will encounter such issues when developing or redeveloping property.

Just as there are a couple of different ways of creating an easement, there are different ways of terminating an easement. Some easements will have a termination date. The most common example is an easement granted to a municipality to construct a road. Oftentimes the easement will provide that the easement will expire when the road is completed.

As the parties may agree to create an easement, so too, they may agree to extinguish the easement.

An easement can also be terminated where the owner of the serviant estate purchases the dominant estate or vice versa.

If the owner of the dominant estate overuses the serviant estate the owner of the serviant estate may sue to have the easement released. For example, if the dominant estate has the right to maintain a driveway over the serviant estate to run two or three trucks a day in and out to the dominant owner’s building and the dominant owner starts running twenty or thirty trucks an hour across the driveway, the owner of the serviant estate could seek to have the easement extinguished.

If the owner of the dominant estate does not use the easement for a sufficient time, depending on the nature of the easement, the owner of the serviant estate can claim that the easement has been abandoned.  Similar to trying to extinguish the easement through overuse, seeking to have the easement extinguished because of abandonment, is a question of fact. If the easement is only used once every month, or even year, the fact that the dominant owner did not use it one time probably is not enough. If the dominant owner was using the easement four times a day and has not used it in two years, probably is enough to support a claim that the easement has been abandoned.

Relocating an easement is not nearly the daunting task as one might believe. With sufficient planning and money almost any easement can be relocated. If the development or redevelopment of the property requires relocation of an easement, one would do well to identify that issue early in the development process because it will take some extra time to draft the necessary agreements and work with the owner of the serviant estate.

If the easement is owned by a public utility company, they are used to dealing with requests to relocate their easements. Their concerns will be that the work to relocate the easement be done properly and that there be little or no interruption in service. The issues to work out with the public utility company are who hires the contractor to perform the work and are there any dates when the utility company will not want to relocate its lines.

Both the developer and the utility company will want to hire the contractor to perform the work so that they can control the contractor and make sure the work is done correctly. Utility companies are pretty flexible about relocating their lines, but they might have some times when they do not want to move them. For example, it is best to try to move a gas line in the warmer months and a telephone line on a weekend.

If the owner of the dominant estate is an individual or corporation, the best thing to do first is determine what type of easement it is and how the owner of the dominant estate uses the easement to enjoy the dominant owner’s property. Is it a driveway easement that can be relocated as part of a redevelopment of the serviant estate? Is it an easement for a utility service line that can be moved as a public utility line can? If it is a service line, the same concerns with moving a public utility line will arise.

Similar to moving a public utility line, the owner of a private easement will want to make sure any relocated facility be constructed equal to or better than the existing facility.

An issue to consider when dealing with a private owner of a dominant estate is the owner of the dominant estate might request or demand some payment for the dominant owner’s consent to moving the easement.