First a disclaimer. I can’t dance. I know there’s supposed to be a relationship between the music and whatever is happening on the dance floor, but I make excuses by telling people I’m just hearing different music. The truth is that sometimes I hear no music at all.
We all like to follow what others have done. Much of real estate is following a form someone else prepared. Deeds, notes, and mortgages are usually done with forms. The forms are foreign to most people, and they aren’t to be taken lightly. But you have no idea how many times someone has called and said, “We’re closing tomorrow. Just ‘do me up an easement’ so we can close.”
That’s what this article is about – easements. Those who catalog these articles will remember that six months ago I wrote an article about a blanket easement. That article featured a case in which a sign company placed an easement on a lot allowing the company to erect a billboard on a lot in Fort Walton Beach. There was no requirement in the document about where the easement was situated on the lot. The easement therefore blighted the entire lot because it made the lot unbuildable.
The lesson I suggested in the article is that the preparation of an easement requires questions to be asked and answered.
There is no prescribed form for an easement. Courts use a formula that says first you read the plain words of the document creating the easement to determine what the parties intended. Then, if what the parties intended is determinable, you do what it says. Otherwise, it must mean something, so it likely won’t be disregarded. But what it intends is sometimes a pure guess for a court.
For instance, if I own property containing two acres and sell the rear acre, everyone knows I must also grant an easement on the front parcel to access the rear. But what if the guy in the back builds a church and has a hundred cars using that easement every Sunday morning? What if he had told me the lot would be used for his single family home? Suppose he needs to pave the easement, or the easement needs to be maintained? Suppose the rear property is not one acre, but twenty, and its owner wants to subdivide. If the subdivision ordinance requires a 60’ minimum easement and not the 20’ easement he was initially given, does he get the larger easement that meets the subdivision ordinance requirements of 60’ instead?
Suppose an owner wants to slow traffic and erects a gate or speed bumps? Can he do that? What happens if the owner of the back lot later sells it and the new owner opens a junkyard? Did the easement transfer with the property, or is it available only to the owner to whom I originally conveyed it? Is the new owner entitled to use the easement I intended for another person?
The answer to every one of these questions has ultimately been litigated because the parties simply weren’t careful about the document they drafted.
This list of possibilities could go on and on. The lesson for this article is that an easement prepared today is an interest in land that will control the development and value of all of the property over which it lies, and the property it benefits, for years to come. The easement should contain language precise enough to express the complete intent of the parties.
When drafting an easement the drafter must imagine and anticipate all the possible ways the easement could be used long after the grantor of such easement is long gone.
Consider the following questions:
1) Who is the easement intended to benefit?
2) What property is intended to benefit?
3) What property is intended to be burdened by the easement?
4) How will the easement be used?
5) What limits will be placed on the easement?
6) Is the easement to be passed to future owners of either parcel?
7) Who will construct and maintain the easement?
8) Who should insure and pay taxes on the easement property?
9) If the easement is abused, who can limit or stop the abuse?
10) If many different owners will benefit from this easement, is there a way to make sure they share in allocating the maintenance expenses of the easement in some fair way?
Finally, please understand that the purpose of this is not to make Realtors and title insurance agents better at drafting easements. Instead, it is intended to make you a better partner with your lawyer by giving you some of the questions that must be asked, and that the easement must answer.
This subject is too important for you to be dancing alone.