An Overview of Express Easements and their Legal Descriptions

On Behalf of | Jan 19, 2021 | Land Use Law

You bought a retirement home adjacent to a lake, but not on the lake, in large part because the title included “[a] 60 foot of even width roadway easement” across the neighboring property ending at a boat ramp that provided direct access from the home to the lake. You traded-in the second car for a truck and bought a fishing boat and that is when you realized the road is too narrow to get the truck turned around at the ramp. When you asked the owner of the neighboring property if you may widen the easement from 15 to 30 feet, just at the end near the ramp, the neighbor replied with an unequivocal “no.” What can you do?

The above scenario illustrates a common issue that arises with easements, a dispute between neighbors as to what the scope of use of the easement should be. Unfortunately for the owner of the retirement home, “60 foot of even width roadway easement” does not provide that the easement may be allowed up to 60 feet in width. The width of the easement is determined by what is necessary for the reasonable use of the easement. Easements are often recorded as 60 feet in width, which means the easement goes outward 30 feet on each side of the center line and has room to move if it is no longer able to serve its purpose in its current location.

The argument that the purpose of the easement was to access the boat ramp, and that purpose has now been interfered with by the neighbor’s landscape, would likely provide a remedy in court for the owner. If the language of the easement had read “[a] 60 foot of even width roadway easement for access to the boat ramp” or something even more particularly described, the owner would have a good basis for judgment as a matter of law (JMOL). Even absent more specific language, a good attorney would move for JMOL.

Most properties have some type of easement on them. Easements can give the holder a right to do something to someone else’s property or prevent someone from doing something on their land. For example, there may be an easement for the utility company that provides it the right to access the pipes beneath your home or there may be an easement that prevents the property owner from planting trees that would interfere with the easement holder’s use of an access road.

A Few Easement Basics

An easement is a nonpossessory property right to use and/or enter onto the real property of another.

An express or legal easement is usually written into the deed or referenced in the deed. There are also non-express or implied easements that arise out of factual circumstances such as necessity. An implied easement by necessity is created only when the property is virtually useless (e.g. landlocked).

The property that benefits from the easement is called the dominant estate and the property that the easement crosses over is called the servient estate. The easement holder does not own the land covered by the easement but does have a right to do those things reasonable and necessary to receive the full benefit of the easement.

Changes in easements are tested under a reasonableness standard.

A Breakdown of the Easement Language from a Recent Oregon Appeals Case

Below is the language provided in a recorded reciprocal express easement running along the eastern boundaries of two properties:

“The parties hereby grant unto each other, their successors and assigns, a perpetual and non-exclusive easement for ingress and egress, as well as the installation and maintenance of underground utilities lines, within 25 feet of the east boundaries of the two parcels.” Sander, Trustees of Barry J. Sander and Goldye Wolf Revocable Living Trust v. Nicholson decided by the Oregon Court of Appeals in August 2020.

  • Grant unto each other, their successors and assigns allows the existing easement to be passed on to a future purchaser of the property.
  • Perpetual and non-exclusive easement means the easement runs with the land and can be used by others.
    • There are two types of easements that can be granted to the dominant estate: easement in gross (exclusive easement) and appurtenant easement (non-exclusive easement). An easement in gross is granted exclusively and when the property is sold, the future owner does not benefit from the easement.
  • Ingress means entering the land, and egress means exiting out from the land, held by the dominant estate.
  • For the installation and maintenance of underground utilities lines gives public utilities an easement to the two parcels.

Avoiding Disputes about the Use of the Land

The best way to avoid a future dispute over an easement is by performing an easement search in addition to the title search prior to purchasing a property. If you have this search performed by a professional title search company be sure to start at the beginning of property’s recorded history. Title search companies often increase the cost of the records search with each additional decade that is included, but it is well worth it.

Even a well-recorded easement may be misused or disputed as to its scope. If you are buying a property and the recorded easement does not describe the easement as it is currently being used or is ambiguous, you should have the seller cure this defect before purchasing the home. However, currently Oregon is a seller’s market and this may not be a valid option at which point you’ll have to balance your desire for the property against the possibility of issues that may come with quieting the title and clarifying the scope of the easement.