What is an Easement Agreement?
An easement agreement is a legal agreement executed between two parties which gives one party the right to utilize a portion of real property owned by another party for a specific purpose or use, such as the right to cross, build, or access the property owned by the other party. Essentially, an easement agreement details the rights of both parties in regard to the use of the property. Essentially, the party which has the right to use the land is called the dominant estate , while the party which owns the property over which the easement is granted becomes known as the servient estate.
One of the benefits of an easement agreement is that it is often given as a part of a real estate transaction and is recorded by the county land records offices where the property exists. This means that a property burdened by such an easement is encumbered by the agreement, and is attached to the land itself. In other words, such an easement stays with the property, even through the sale or transfer of property ownership, unless it is a limited easement of some kind or is a license and can be terminated by the land owner.
Keep in mind that easement agreements provide for specific rights in the use of land, and do not provide ownership or control of the land, only limited use of a portion of the land and for a specific purpose.
Different Kinds of Easement Agreements
Appurtenant Easements
An appurtenant easement is the most common type of easement. This means that the easement is attached to the "dominant estate," which is the property that benefits from the easement. Despite the fact that the easement is physically tied to the dominant estate, the easement is a burden on the "servient estate," or the property that has the easement running through it and is affected by it. Traditionally, an appurtenant easement only allows the dominant property owner to use the easement for specific reasons or to access parts of a property that it otherwise would not have access to.
Easements in Gross
This is the second type of easement. The main characteristic of this type of easement is that it benefits the individual in their capacity as an individual. This means that it is not connected to a property and does not attach itself to a particular parcel of land. Instead, it is a separate interest in the land. This is the main reason that easements in gross are so uncommon. If you have an easement in gross on your property, it can reduce the value of your estate. There are two distinct types of easements in gross: Personal – By far the most common. A personal easement in gross is one that the individual uses and benefits from. A classic example is a shortcut. Commercial – A commercial easement in gross benefits an entity. An example of this is when a utility company owns an easement allowing them access to the land. This is easier for commercial entities to prove in court.
In general, easements in gross are not transferable. They cannot be sold or inherited (because they are not technically an estate). However, there are some exceptions to this rule. While easements in gross cannot be sold in connection to the property, they can be assigned to a third party for their use. These are rare because the law does not want easements in gross to be owned by multiple parties. This is because of the complexity it adds to the administration of the land. Interpretation of the easement in gross can help determine if the property can be assigned to a third party for their use.
Benefits of Using a Free Easement Agreement Template
Free easement agreement templates have a number of benefits, particularly if you are working on a tight budget. These templates are typically available at no cost and therefore can offer you a means of saving money: a particularly appealing option for those who are buying or selling a piece of property for the first time. Even if you’re not, however, you will likely find that turning to a free template makes it easy to ensure that you have the information you need.
In many cases, the parties who would be creating the easement agreement would have an attorney draft the final version of the document. This, of course, drives costs up. There is a simple solution here, though—downloading a free easement agreement template. With this option, you won’t have to pay an attorney for fees to draft your easement agreement. You will, however, need to take on the task of drafting yourself.
Even if you have a tight budget, you might still be tempted to copy-and-paste another property’s recorded easement agreement that is similar to what you’re looking for. There are a couple of problems with this. First, you could be tempted to do some copying-and-pasting when you really shouldn’t. You don’t want to simply copy a stranger’s easement agreement with only passing attention to the details. Even if you chop and change the template’s language, you might still end up including verbiage that doesn’t make sense in the context of your contract.
You could also be tempted to borrow text from a publicly-recorded easement agreement without enough consideration of how your own easement agreement is likely to look. It’s important to realize that easement agreements are typically recorded by the particular jurisdiction. If you were to forego a template in favor of a recorded easement agreement that’s not suitable for your own, you could have significant legal problems. What you might not realize is that any problem realtors have with the easement agreement relies on state specific law. Because laws change frequently, a provision that was acceptable at one time may no longer be considered to be so. If a judge does not find that your recorded easement agreement upholds the law, you could be denied enforceability.
Key Elements of an Easement Agreement Template
The most common easement agreement is a "Right of Way" (ROW), which is often written as an easement running with the land. A typical easement agreement template includes the following:
Description of the easement – the easement agreement template may state the parties involved. It may also include information such as the location, description of the property burdened by the easement, whether the grantor has the right to revoke the easement, the rights of the easement holder, etc.
Rights granted – the easement agreement template may provide for what rights are granted to the easement holder. Such rights include the right to access a driveway or street, stay on the property, limit access to certain individuals and/or groups of people, etc.
Maintenance responsibilities – the easement agreement template may provide who is responsible for any maintenance of the easement on the property. Often times the easement holder is required to repair and maintain the easement, while other times the grantor is responsible for the upkeep.
Customizing an Easement Agreement Template for Your Needs
One of the often overlooked aspects of free easement agreement templates is that they are just that – templates. These downloadable PDF forms are designed to be generic, but generalities don’t apply to every situation, and it is important that you know how to modify one of these free forms to fit your unique needs. After all, a "generic" easement may be sufficient if all you need is permission from someone to do something on their land, but if you or your neighbor intend to move ahead with developing your property or moving forward with a project, you’ll want something more than a generic easement agreement Template.
Generic easements may not cover some of the finer points, and while the standard forms have all the main points , it is important to be flexible in customizing the easement to specifically what your needs are. The intent behind the easement agreement template should drive its creation so that it fits the circumstances and parties involved. If there is already an understanding as to what use is being given away and how it will be exercised, then creating a free easement agreement template to reduce that to writing will be relatively simple.
As a quick reference, here are some common points of modification that you will want to keep in mind when you go to fill out an easement document (even if using a free easement agreement template):
These points are simply a guide to help you get started, and you can choose whether or not to adopt suggestions in the above list and add or alter those items that you feel are appropriate.
Disadvantages of Free Templates
The most common problem when using a free easement agreement is that the grantor and grantee do not understand what rights they are giving up and accepting. The liability for this misunderstanding falls on the property owner or grantor who is giving over property rights to a grantee. It is essential that you understand what you are signing and what obligations you are giving to the grantee. This does not mean you should read legalese, but you should understand what rights you are giving to the grantee. It is never a good idea to use a free easement agreement as "a document to adopt and move on." Before you sign your name to the dotted line, ask the grantee or its attorney to clarify any provisions you are not clear about. A property owner may make the mistake of signing something that he or she thought was just a "permission slip." However, upon reviewing the easement agreement, the owner learns the agreement gives the grantee essentially the same rights and privileges that the owner possesses. A real estate attorney will be able to help you clarify any questions you may have, but you still need to read through the entire agreement. This means don’t just read the parts that have blanks for you to fill out with your information, read all of it. Find out all of the ownership rights and responsibilities you are taking on. For example, when adding driveway access to your land, does it give the general public access? If so, what are you willing to take on as a result? Just because people may use your driveway regularly, in passing, is this a risk you are willing to take?
Another way a property owner can be tricked into signing an easement agreement is by signing a Quitclaim Deed. A Quitclaim Deed transfers the property from one owner to another without any assurance that none of the rights of the underlying fees are attached. Some grantors or real estate title companies provide a Quitclaim Deed to change the fee ownership from one buyer to the next. This type of deed is often attached with easement agreements. Do not sign the Quitclaim Deed unless you are fully aware of the implications of the deed. A good benefit while reviewing an easement agreement (or any other property documents) is to take the documents to your real estate attorney to go over them before you sign your name.
Where to Search for a Free Easement Agreement Template
An essential aspect of writing your own easement agreement is knowing where to find good free easement agreement templates. If you take a doddle through a search engine, you will no doubt find hundreds of free easement agreement templates and forms. The vast majority of these are junk and should be avoided at all costs. You can generally tell that a site is not worthy just by the fact that it does not list any contact information other than an email account.
There are good sites that will give you free easement agreement templates. Unfortunately, I put as much effort into finding a reliable source for free easement agreement templates as I put into writing easements. The result is that I know the sites to be on and the ones to avoid. There are all sorts of internet watchdogs who will advise which sites and templates are good and free. This advice is mostly worth more than the old adage about eating at a place with a lot of cars in the parking lot. In this case, it is usually the car in the shortest line that is the one to avoid.
A good site to visit for free easement agreement templates is the Neighborhood Legal Clinics site. This site works with law students to provide free or low-cost legal services to qualifying individuals. They have agreements that they recommend and if you contact them, they may even give you advice on filling out the forms. They do not give the forms away for free but they do allow others to use their collection as long as you give them credit for the form . It is a fairly complete collection of fairly standard easement agreements.
A second place to go is any state’s land office site or court house website. These sites will probably contain the same form that other states offer but may not have the disclaimer regarding the use and sharing of the forms. They are often very good places to get the forms you need.
There is nothing wrong with paying someone to prepare an easement agreement for you. But in almost all, if not all, cases, you will have to pay someone to finalize your easement agreement even if you do write the body of the easement yourself. A lawyer will still have to witness your signature and prepare the certificate of acknowledgment.
Lawyers are notoriously bad when it comes to informing their clients what they can do themselves. Lawyers find money making opportunities in the fact that the average person cannot possibly know when he or she has a problem that requires the services of a professional. Even if you have the problem identified, you may still not want to spend the money to hire someone and unless they make that clear, they may cost you money by not letting you handle the matter on your own if that is your choice. Most of the forms offered on sites such as the Neighborhood Legal Clinics site are fairly standard and the site does not suggest that they are the only ones available.