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The Nightmare of General Easements

Author: Tracie L. Clabaugh Date: 03/01/2013

Categories: Real Estate Law

Easements are interests in real estate which usually provide a benefit to owners of one parcel of land, while burdening another parcel of land over which the easement runs. Sometimes the creators and drafters of easements describe them generally and do not ever provide their specific locations, or even specify the full nature or extent of the purpose for these restrictions. Real estate professionals call these “General Easements.” While courts recognize the existence and the validity of General Easements these types of interests can be unpredictable and dangerous. Many times it is unclear what rights were intended to be granted by the easement. Often, this results in a cloud on the title of the properties subject to the easement which can delay (or even a shutdown) a development project.

Frequently, the document creating a General Easement is so vague that other factors may need to be considered, such as the intention of the party granting the easement, the current use of the land over which the easement is located, or the intended purpose of such an easement.

ABC Development Company (“ABC”) intends to purchase an unimproved lot, which appears to be suitable for its intended commercial use. Prior to purchasing the lot, ABC requests that a title search be performed which reveals that the lot is encumbered by an easement. ABC reviews this easement and concludes that it benefits the unimproved lot, but terms are vague and it burdens the adjacent lot over which the easement is to run.

ABC asks its lawyers:

  1. Is this easement valid?
  2. How will it affect the intended development and use of the unimproved lot?

In this situation, in order to determine whether a recorded General Easement is valid, the law tries to protect the owner of the land over which the easement is located while upholding the purpose for which the easement was granted. Clearly, that balancing act will result in different outcomes in different situations.

Too often developers learn of these problems too late. Given that general easements may restrict the land over which the easements are located while benefitting another parcel of land, immediate action needs to be taken in order to address the purpose and intent of the easement and to seek a balanced solution. Otherwise, the owners of both properties may be subject to unpredictable restrictions on their uses. At the end of the day, nobody wants to purchase a property that cannot be used for its intended purpose.

Tracie Clabaugh, Donna McMillan and Michael Faerber regularly deal with these kinds of problems as part of their work for major builders and developers. They may be reached at (301) 251-1180.