Despite being teased for sometimes using big or unfamiliar words, attorneys tend to universally use the common word “tricky” when describing easements. An easement is a right for one property owner to use someone else’s property without taking away ownership from that other owner.
For example, I may own a woods that is located 100 yards off a road with farmland owned by someone else between the woods and road. Although there may be a back entrance to the woods, if I wanted a more direct entrance to the woods, I could ask (and likely pay) for an easement from the owner of the farmland for the right to travel directly from the road to the woods. The deal with the farmland owner can include details like exactly where on the farmland I may travel, how often I can travel through that area and clarification that I can only travel across the identified area and not park vehicles on the area.
Illustratively, a right-of-way is an easement type that limits the use of the access to the property for transportation across the area, not for parking or building.
One of the biggest legal risks with easements is the possibility that the easement could be interpreted as a license.
As explained above, easements are rights that affect real estate (benefitting one property and burdening another property) and become a literal part of those properties. In contrast, licenses are grants of rights to people. Property use licenses are like hunting or fishing licenses, in that they are not transferable.
Therefore, in the example above concerning my woods, my neighbor may give me the right to use part of the farmland to access the woods, perhaps because he knows me and my tendencies. If the right given me by the farmland owner is a license, when I sell the woods or die, the new owner of the woods would have to “start over” in trying to get more direct access to the woods.
Because easements affect real estate, they should be in writing, and they must be recorded if they are to remain effective for future property owners. The tricky part of the recording is that the easement agreement must specifically identify the property that is being benefitted and the property that is being burdened.
Again, in the woods and farmland example above, the easement agreement needs to include the complete “legal” description of my woods and the complete “legal” description of the neighbor’s farmland, even though the easement would only affect a part of that property. It is crucial, if the easement is going to be effective in the future, that the description of my woods property include a specific citation to the courthouse recording location of the deed where I acquired ownership of the woods. Similarly, the easement must include a specific citation to my neighbor’s deed’s location in the courthouse records. Our names on the easement also need to be identical to our names in those deeds.
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.