Legal-Ease: Four questions on easements


LEGAL-EASE

By Lee R. Schroeder - Guest Columnist



Lee R. Schroeder

Lee R. Schroeder


The law and practicality require that every parcel of land have access to a public roadway. For a variety of reasons, a practical solution for a landlocked landowner to access that landlocked parcel may be to purchase/acquire an easement from an adjoining landowner. An easement is a right to use property without owning the property.

Easement concerns usually break down into four questions.

First, is the easement (the right to use) owned by a person, or does its ownership attach to ownership of the property that is benefitted by the easement? An easement that is attached to the benefitted land is called an “appurtenant” easement.

Second, what uses by the easement owner are allowed on the easement area? Most easements simply allow for “ingress and egress,” which essentially means that the easement can be used for vehicular or pedestrian traffic. An ingress-egress easement is commonly called a “right-of-way.”

However, many easements also include specific limitations on their uses. For instance, the easements granted to a certain Ohio railroad by hundreds of farmers over 150 years ago limited that railroad’s use of the easement area to “railroad purposes.” About 20 years ago, a class action lawsuit was filed claiming that that particular rail line had allowed fiberoptic and telecommunications transmission lines to be installed adjacent to the railroad, in the railroad’s easement area. The class action lawsuit alleged that the easement’s scope was limited to rail-specific transportation.

Third, what uses by the landowner are allowed on the easement area? Generally, the landowner who retains ownership of the easement area can use the easement area in any way that does not stop the easement holder from exercising his or her permitted uses.

Illustratively, a farmer may give or sell an easement to the owner of a nearby woods to allow the owner of the woods to travel across a portion of the farmer’s land. The farmer can farm the easement area as long as the crops raised on that easement area do not prohibit the owner of the woods from accessing the woods. The farmer would probably be precluded from planting corn on the easement area. Likewise, the farmer would likely not be able to place furrows or ditches on the easement area that would preclude the easement owner from using the easement to access the woods. Understandably, fact-specific disputes in situations like this frequently arise.

And, fourth, can the easement holder significantly increase the quantity of use? Suppose the woods in the last paragraph’s example was subdivided into a multiple-home residential subdivision. Would all those new homeowners (much more traffic) be able to use that appurtenant easement?

Typically, “reasonable” increases in the quantity of use of an easement is allowed. Of course, the definition of “reasonableness” is sometimes disputed.

Nobody likes the work involved in defining easements with precision when the easements are initially created. However, the more detailed the explanations of the allowable competing uses and quantities of use, the fewer disputes arise later, when it is exponentially more expensive and difficult to sort out.

Lee R. Schroeder
https://www.limaohio.com/wp-content/uploads/sites/54/2017/07/web1_Schroeder-Lee-RGB-1.jpgLee R. Schroeder
LEGAL-EASE

By Lee R. Schroeder

Guest Columnist

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

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