Easement Disputes

Many real estate disputes involve easements. These disputes can often involve the location of an easement, the scope and purpose of an easement, and even whether an easement exists at all.

But what exactly is an easement? An easement is merely the right to use another person’s property for a specific purpose. It is not an ownership interest in another person’s property. The most common type of easement is an easement for access to a parcel of property, which is often called an easement for “ingress and egress.” This allows the owner of the easement to travel over the easement to get to and from the owner’s property.

What can and cannot be done regarding an easement? Most easements are non-exclusive. That means other people can use the property that encompasses the easement. So the owner of the property over which the easement runs can use the easement as well. That owner can use the property in any way he or she sees fit, so long as the owner does not interfere with the easement owner’s use of the easement. If an easement owner’s use is interfered with, they might have a claim against the underlying property owner. For the owner of the easement, they can use the easement in any manner that is consistent with the scope of the easement. so if an easement is for ingress and egress, they can use it for that purpose but not for other purposes. If the easement owner uses an easement outside the scope of the specified purpose of the easement, the underlying landowner might have a claim against the easement owner.

Well drafted easements should include specific details on a number of key terms such as:

1. identifying the property over which the easement runs;
2. identifying the exact location of the easement on that property;
3. describing the allowed uses of the easement; and
4. identifying which property is to benefit from the easement. An easement for access may also contain details about who is responsible for maintenance and repairs within the easement.

Once drafted and signed, easements should be recorded in the county auditor’s office so that future owners of the properties are aware of the easement.

Well documented easements are essential to the enforceability of easements and the benefits easements provide to the easement owners. If you are in need of an easement, thought and care should be taken in drafting the easement document and an attorney should be consulted before the easement is signed and recorded. That will go a long way in helping avoid future costly litigation in court about the easement.