Volume 2, Number 2
|Table of Contents|
15 Things to Remember in Drafting Real Property Easements
1. Get a clear understanding of the current intentions of the parties and the physical characteristics of the land, as well as the future intentions of the parties and the potential development of the land.
2. State the purpose of the easement (in addition to traditional purposes, an easement can be used to settle encroachment disputes).
3. Describe the easement area.
4. Describe the easement rights to be created (should be as broad or a limited in scope as intended by the parties).
5. Describe the land to be benefited (“dominant parcel”), and address potential subdivision of the dominant parcel and whether the benefits should be extended to additional property acquired by the owner of the dominant parcel.
6. Express the duration of the easement (perpetual, for a term of years, or until a specified event).
7. Express whether the easement is (1) intended to be personal to the grantee (“in gross”), in which case the restrictions on transferability should be expressed, or (2) intended to be transferred by the grantee to subsequent owners of the dominant parcel (“appurtenant”), in which case the terms “appurtenant” and “covenant intended to run with the land” should be used in the instrument.
8. Express whether the easement is exclusive or nonexclusive (address the use of the easement area by the owner of the servient parcel and others).
9. Address whether the easement holder has the right to construct improvements within the easement area.
10. Address the allocation of maintenance responsibilities and expenditures (include the right of access outside the easement area for repair, if needed).
11. Record the easement instrument.
12. Perform a title search of both the dominant and the servient parcels.
13. Determine whether there are mortgages or other liens superior to the easement; if so, obtain subordination agreements from the holders of such liens.
14. After creation and recordation, any conveyance of the dominant parcel should describe the easement in the granting clause and any conveyance of the servient parcel should except the easement from any warranty.
15. Lenders or creditors taking a mortgage or other lien on the dominant parcel should be sure that the easement is described in the granting clause of the lien instrument and that the title parcel covers the servient (as well as the dominant) parcel.
Did you find this checklist helpful? Do you think more information like this would help you? More information is available - This checklist was republished with permission from the GP|Solo Publication: Real Estate Closing Deskbook, 2 nd Edition – A Lawyer’s Reference Guide & State by State Summary; pp38-39, by K.F. Boackle. GP|Solo members can purchase this book, which includes electronic forms, at a discount through the GP/Solo bookstore website: http://www.abanet.org/genpractice/books/index.html