Easement in Gross; Assignability
Another trap for the unwary telecom easement drafter is the default rule prohibiting the assignment of easements in gross. Typically, a telecom company will not own a nearby property to act as the dominant estate for an appurtenant easement. Therefore, the parties will typically negotiate an in-gross or personal easement rather than an appurtenance to a dominant estate. At common law and by default, however, easements in gross are not assignable. And, even if the parties are negotiating an appurtenant easement, such use rights are only assignable in that they run with the title to the dominant estate. An appurtenant easement cannot be severed from the dominant estate and independently alienated unless specific provision is made for assignability. Therefore, you must affirmatively contract around the common-law default rules so your telecom client will not be stuck with an easement that it cannot sell or transfer to a subsidiary. It is, therefore, essential to include provision for the assignability of the telecom easement.
Scope of Use Rights; Draft Broadly
Telecom technology changes rapidly and constantly. The physical infrastructure for cellular service is constantly evolving. An easement, however, is a rigid, nonpossessory estate in land that allows the easement holder to make specific and limited uses of another person’s land. Thus, there is an inherent tension between the telecom easement as a legal form within which to operate a telecom facility, and the nature of the telecom marketplace and the technologies employed. Given this tension, it is imperative to draft the scope-of-use provision in the telecom easement broadly to grasp changes in technology to avoid technical overburdening or misuse of easement in the future.
Real Estate Taxes; Allocation; Fixtures
In general, the person who pays the real estate tax bill is the assessed owner. In contrast, an easement holder typically does not owe real estate taxes for the servient estate. Often, the improvement of the servient estate with a valuable cell tower increases the taxes on the servient estate. Therefore, you may think if you remain silent on this topic you will saddle the servient estate owner with the tax bill increase. Setting morality aside, however, this is the wrong approach for a few practical reasons. Therefore, it is generally a best practice to negotiate a reasonable allocation of the tax bill so that the telecom company pays for the increase in value of the servient estate attributable to the cell tower. First, the telecom company will want to receive all tax bills and notices so it can ensure that owner is paying all real estate taxes. In some jurisdictions, a real estate tax lien could be a “super lien” and wipe out the telecom easement. Second, a fair and reasonable allocation of the real estate tax bill, apart from being the “right” thing to do, will justify provisions in the telecom easement for treating the telecom facility as the telecom company’s personal property rather than a fixture. Finally, a provision allocating responsibility for real estate tax liability avoids a common source of disputes in the future.