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How to Draw Up an Easement

by Jayne Thompson

An easement gives a property owner the right to use someone else's property for a specific purpose, perhaps to gain access over it, or to park on it, or for utilities. An easement may be limited in time or it can go on forever. It typically benefits an identified property, known as the "dominant" or benefited land, to the prejudice of another property, known as the "servient" or burdened land. Easements can be complex and generally require the drafting skill of a real estate attorney, but some provisions are common to all types of easement.

Identify the type of easement to be granted. If the right is intended to benefit land, it is called an "easement appurtenant," and you must clearly identify the extent of the benefited property. If the right is intended to benefit an individual and not future land owners, it is an "easement in gross." In this case you should identify the grantee. This might be more than one person. For example, if you are giving a local business the right to store goods on your property, the grantee will be the business together with its agents (employees), customers, contractors and so on.

Identify the parties to the easement. For an easement appurtenant, this will be every owner of the benefited land and every owner of the burdened land. The person granting the easement is the "grantor," while the recipient is the "grantee." If the burdened property is leased, the tenant must join in the grant as an additional grantor. If it is mortgaged, the lender must consent to the easement, otherwise the grant may put the grantor in default. An attorney inspects the title to the burdened property to confirm ownership.

Identify the burdened property on the easement document. Use its address and its legal description. The burdened property is unlikely to be the whole of the property owned by the grantor. For example, an easement permitting a utility company to lay underground pipes or cables will only affect land of a certain width and location. Draw up a map or an image of the easement land and specify its dimensions. Refer to the map in the easement document and attach the map as an exhibit.

Identify the benefited property in the same way, unless the easement is personal.

State the nature of the easement. This requires careful drafting. Simply granting a right of way might not be enough. This would permit both pedestrian and vehicular access, and would permit any vehicle of any type to exercise the right. The burdened owner might not want certain vehicles, such as heavy trucks, on his land, or may seek limits on the way in which the easement can be exercised, for example, by prohibiting the passage of construction traffic at night. With a utilities easement, the grantor might need relocation provisions allowing him to move the pipes or cabling to a different location if, for example, he wants to develop the land over which the pipes are situated. The drafting should deal with all possible scenarios.

State any right which the grantor wishes to retain over the burdened land. If, for example, he wishes to construct a gate across the right of way for security purposes (giving the grantee a key), the easement must state this specifically, otherwise the grantor will be interfering with easement. Such matters are called "reservations" and require clear drafting.

Specify whether the easement is permanent (perpetual) or temporary. If it is temporary, specify without ambiguity the date or event which brings the easement to an end.

Sign the easement before a notary public and an additional witness if this is a state requirement. File the deed with your county records office.

Warning

  • Disputes arise when the wording of the easement is vague and open to interpretation. Keep the drafting clear and unambiguous.

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