As the rapid growth that Northwest Arkansas is experiencing continues to require the expansion of buildings and infrastructure, you may find yourself being approached by a public utility, a developer, or even a neighbor seeking to obtain an easement over your property. If and when this occurs, it is critical that you understand what is being asked of you, and what property rights you are giving when granting an easement. While property owners’ willingness to grant easements is important to the further development of our economy, prior to granting an easement, landowners should take care to ensure that the rights and responsibilities being granted and undertaken are clear and in their best interest.
Though each of us is impacted by them every day, many people will never be party to an easement agreement, and so in-depth knowledge of easements is not widespread. An easement is the right of one party, called the Grantee, to use property of another, called the Grantor, for a specified purpose. Because the right of an individual to own property is so central to who we are as Americans, the law ensures one party cannot simply enter onto the property of another and use it as he wishes without first obtaining the landowner’s permission.
For example, when a public utility such as an electric company, water company or internet provider desires to run their facilities underground or overhead across someone else’s property, the utility cannot simply begin digging and installing its facilities. It must first obtain an easement from the landowner. The easement should be memorialized through a written agreement that clearly states the location of the easement, including the length and width, as well as the specific activities the Grantee is being permitted to carry out on the property. Once the easement is signed, the Grantee will record the agreement in the land records of the county where the easement is located in order to put all other parties on notice that the easement exists.
One significant aspect of an easement is that the rights granted by the Grantor to the Grantee “run with the land”. This means that once an easement is granted over a piece of land, unless the Grantee abandons the easement, he, or his successors, heirs, or assigns will enjoy the rights granted to him forever. This benefit can be lost, however, if the Grantee fails to record the easement. But provided an easement is properly recorded, future purchasers of the land will buy the land subject to the easement. (As a side note, this is why it is important when purchasing property to find out what easements exist on your land and what rights those easements give to third parties!)
While utility expansion and installation is a very common situation in which the need for easements arises, easements can also become necessary between two private landowners. For example, Party A purchases a beautiful lot nestled in the Ozark Mountains of Madison County. The only problem is that the lot is landlocked, with farms all around, and so the only way to get access to the highway is to cross Party B’s property. Party A does not have the right to simply drive across Party B’s property, as it is not his. He must ask Party B to grant him an easement across his property that gives Party A the right to drive across a specified area of the property. While it may be tempting for Party A and B to enter into a handshake agreement as neighbors, this would not be wise. Without a written agreement, if Party B decided Party A was traversing his property too often, or leaving tracks during the wet rainy season, he could attempt to change his mind and block Party A’s access across the property. Party A could also decide the path he normally took was too muddy, or was getting washed out, and could begin driving on and disrupting a different area of Party B’s property.
Even if Party A and B were the best of friends and never had a disagreement regarding the access easement, if Party B sells his property, the buyer would not be bound to honor the handshake agreement entered into between Party A and Party B, and so Party A may be left without access to his property. (In this scenario, because Party A is landlocked, Arkansas law does provide a process by which Party A could go to court to seek an easement should the new buyer refuse to grant him an easement, but that process would result in unnecessary time, expense, and headaches that could have been avoided by having Party B sign a written easement that Party A could record.) If Party A had ensured that a written easement was signed and recorded, the easement would bind the buyer of Party B’s property and his right of access would be uninterrupted.
Having a clear written agreement protects both the Grantor and the Grantee. It allows the Grantor to restrict the third party’s activities on its land, as well as the amount of land being used for those activities. At the same time it ensure the Grantee’s ability to maintain and protect the facilities it plans to install on the property on a permanent basis. The time to negotiate the terms to be contained within the agreement is at the start, before the agreement is signed, and before the party seeking to use the land begins its activities. This will be the point when a landowner’s bargaining power is the greatest, as the third party will likely be willing to compromise in order to gain the right to enter and begin its activities on the land. Once the easement is signed, should problems arise because the terms are unclear or the agreement is silent on a matter, a costly battle could ensue.
Have you been asked to grant an easement to a third party? Or perhaps you need to obtain an easement over the property of another. Let us help you in the drafting or negotiation of your easement agreement in order to protect your property or ensure the rights you are obtaining are clear. A small investment today can pay dividends for years to come.
