If you are asked to grant an easement in your property, you should be aware that normally it will affect not only your use of the property, but that of any subsequent owner of your property. To avoid misunderstandings the agreement should be in writing. Care should be taken to ensure the exact placement of the easement and to limit the exact uses to which the easement may be put, and attention should be paid as to who must maintain the easement and what sort of surface or structure may be installed in the easement area.
If you are granting an easement, you also probably want to be paid for it. You should consider the impact the easement will have on you and the impact it will have on the value of your property. As a corollary to this analysis, there are alternatives to easements that should always be considered. You can give your neighbor a “license” rather than an easement. This resembles an easement but is “personal” to your neighbor; thus, it does not pass to a buyer of your neighbor’s property. You can also limit the length of time an easement or a license lasts. Finally, in some instances, you could grant your neighbor a lease to use a certain part of the property for a particular purpose for a given time and rental. In summary, a landowner should not move too quickly or give away an interest in land too cheaply, the costs and options should be weighed.
If you are the party asking for an easement over your neighbor’s property, the same care must be taken. You want to be sure that the document is properly signed and notarized (this can only be guaranteed by reviewing the neighbor’s deed). You also want to ensure that the uses to which the easement can be put are documented as broadly as you will require; and you want to pay the same close attention as the landowner to issues of location, maintenance and construction. Finally, you would want to ensure that the document memorializing the easement states that the right granted “runs with the land.” This last point is vital. If the easement is important to you it is likely to be important to someone who purchases the property from you. If a future buyer knows that he does not have the benefit of a useful easement, this will have an impact on your sale price and might prevent a sale of the property completely.
As the beneficiary of an easement you will have other concerns as well. If the neighbor granting you the easement has a mortgage on his property, you will want to insist that the mortgage lender join in the easement agreement. Otherwise, if the bank forecloses on your neighbor’s property under a mortgage that pre-dates your easement, you could very likely lose the easement at the foreclosure sale. Finally, you need to ensure that the easement agreement is properly recorded and indexed with the Recorder of Deeds in the county in which the land is located.
Easements can have a dramatic effect on property use and property values. Much of the law governing easements is very old, and it can take many unexpected twists and turns. During the past five hundred years, English and then American courts have created the general rules; made many exceptions to the general rules; developed elaborate rules to interpret easement language and to determine when and how rights “run with the land;” and they have even created doctrines (“prescriptive rights”) where easements may exist without any agreement by the parties. Before you jeopardize the use and value of your property by granting an easement you should consider consulting a lawyer. That advice is equally valid if you own or intend to purchase a property that you may need an easement.
— Rod Fluck