If you are considering purchasing a property with an easement, either as the dominant estate or servient estate, then it is important that you understand your legal and financial obligations regarding the easement.
Cost of Maintaining the Easement
Easement law varies from state to state, however, in most cases, maintenance of an easement falls on the owner of the easement, also known as the dominant estate. This is most easily understood by looking at easements that solely benefit the dominant estate, such as electrical lines that pass through a corner of your property or the right for cattle to pass through a servient estate to get to their grazing pastures. In these cases, it is clear that the maintenance of the easement falls on the dominant estate.
What becomes more confusing is if both the dominant estate and servient estate benefit from features of an easement, such as a shared driveway that allows access to a dominant estate. In this case, it is still generally the dominant estate who is responsible of general maintenance of the easement. However, the dominant estate and servient estate may enter a contract that specifically states percentage of use and agrees to split maintenance costs and responsibilities based on that usage. This is common where multiple estates share an easement.
However, the servient estate is generally expected to maintain the area around the easement. This can range from not planting trees too close to an easement road to properly maintaining a field that is used as a cattle easement.
What is Considered Maintenance?
Real estate law can become difficult to understand when it comes to maintaining easements. What one person may consider general maintenance, another property owner may consider as unnecessary upgrades. This can include repaving an entire easement road when there are just a few cracks in the asphalt. While the cost of maintenance generally falls on the dominant estate, the servient estate may desire a higher level of maintenance than the dominant state requires, because the easement affects the appearance of their property.
Drawing the line between necessary maintenance and voluntary upgrades can cause real estate disputes. If at all possible, it is important to define specific maintenance expectations between the two parties any time a deed is transferred to a new owner. If there is no written agreement, the servient estate may choose to pay for upgrades on their own or to ask the dominant estate to contribute their maintenance costs towards the upgrade.
Upgrade of an Easement
If you have decided to pay to upgrade your property, including an easement that is owned by another party, it is important to get permission from the owner of the easement before you begin. Certain upgrades, such as repaving a driveway, should not be a problem. However, any upgrade that limits access to the easement may cause a dispute between you and the other landowner.
For example, if you want to install a gate at the edge of your property on an easement road, you may be able to, but only if you supply the owner of the easement with proper access codes and/or a key to the gate. Because a gate may limit natural use of an easement, even if you provide access to the gate, the dominant owner may be able to protest that type of upgrade.
Any time you are dealing with easement issues, whether in the purchase of a new property or the maintenance and upgrade of your current property, it is important to get a real estate lawyer, such as Iannello Anderson, involved. They can help you define your rights and responsibilities and create legal contracts to prevent further disputes over the issue.
