Access Easements…Become Completely Informed

In Issue II of Larry Smith-Vaniz Realty, LLC’s Land & Hunting Reports, we generally discussed access and its importance.  Additionally, we touched on “easements” as a means of access.  In this issue we will discuss easements in general as they relate to access.

What is an easement?  According to Black’s Law Dictionary, an easement is described as “A right of use over the property of another.”  Insofar as an easement for access (generally ingress and egress) is concerned, an easement is the right of one person to pass through the lands of a neighbor. In the instance of landlocked property, an easement for ingress and egress from a neighbor gives the owner of the landlocked property the right travel through the lands of that neighbor.

That sounds simple enough, but rest assured that easements are not simple.  In this discussion we will assume that Owner “A” owns Mississippi land which does not have legal access to a public road.  Owner “B” owns Mississippi land that abuts Owner “A’s” land and also has access to a public road.  Owner “A” asks Owner “B” to grant an easement for ingress and egress to enable Owner “A” to get to and from his land through Owner “B’s” land.

What should Owner “B” consider in making his decision pursuant to Owner “A’s” request? Some considerations are:

1. Do I want to give Owner “A”, or anyone else, the right to pass through my land?
2. Where should the easement be located?
3. How wide should it be?
4. Do we need a survey?  Who should pay for the survey?
5. Should there be restrictions that limit days, hours of use?
6. If I give/sell an easement to Owner “A” can he grant rights to others to pass through my land?
7. I have cows.  Can I require Owner “A” to close all gates immediately after he passes through?
8. What about liability?  If Owner “A”, a family member, or his guest is injured while on my property, can I be held liable?
9. Do I need to require Owner “A” to purchase liability insurance to protect me?  Should I buy liability insurance?
10. Should I get a liability release from Owner “A” and from anyone who uses the easement to pass through my land?
11. My family and I hunt our land.  Should I restrict the hours Owner “A” and his guests can enter my land to avoid disturbance/noise which will negatively impact our hunting?
12. What about ATVs?  They make a lot of noise and are dangerous.  Should I prohibit them?
13. What about damage to my roads from wet weather travel?  Should I prohibit wet weather travel?
14. What about maintenance? Should Owner “A” share in the cost of road maintenance?
15. If Owner “A” sells his land, will the easement I grant to Owner “A” pass on to his buyer?
16. Duration – Will the easement be temporary (for a period of months or years) or perpetual?
17. Who can use the easement… anyone, specific persons or groups, the grantee’s assigns or guests?
18. Should there be restrictions on extending rights to others?
19. What are Owner “A’s” options if “B” elects to deny access?
20. If Owner “B” ultimately decides to grant an easement with conditions, limitations and/or penalties for violations by Owner “A”, what are Owner “B’s” options if Owner “A” violates any of those conditions or limitations?  How are the penalty provisions enforced?

The above questions and items represent only the tip of the iceberg, so an in-depth discussion of easements is not possible in this newsletter as such discussion would be far too lengthy.  The above points are provided in order to encourage landowners who are in need of an easement or those who have lands over which someone wishes to obtain an easement to think before acting.

Our suggestion to any landowner who needs an easement is to contact a real estate attorney or a real estate professional to discuss details in an effort to assure that every pertinent provision or point is considered before contacting the landowner who owns the lands over which the easement is desired.  By doing that, such person can be informed as to what he really needs prior to approaching the owner of the lands over which the easement is desired.

As the situation applies to the landowner who is being asked to grant an easement, he should likewise become fully informed and think through the known and potential short-term, intermediate and long-term impact to his land before agreeing to grant an easement.  Should he grant an easement, he will have given another person (or persons) rights in his land.  The rights given up could result in limitations to the rights of the person who grants the easement to control his own land. Having an easement across ones land can also result in the devaluation of his property.  A landowner should remember, that among other things, an easement through his land often causes potential buyers to avoid consideration of the land because it is subject to an easement.

The bottom line is that we at Larry Smith-Vaniz Realty recommend to any person who is asked to grant an easement to become completely informed prior to agreeing to do so.  Regardless of the side of the situation you are on, make certain that each and every point important to you is included in the easement document.  What you talk about doesn’t count if you do not spell it out in the easement document.

There are numerous other points or matters for the landowner who has been asked for an easement to consider.  As was mentioned above, the decision to grant an easement should not be a “simple decision” as the impact is far reaching, and as stated above could devalue one’s property or cause daily misery.

This article addresses some of the points to consider regarding “Access Easements”.  There are numerous types of easements, such as utility easements, green space easements, no build zone easements and many others.  There are pros, cons and points to consider with each and every one of them, so please remember think through the consequences of granting an easement and become fully informed BEFORE you act.