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Easements are negotiable.

Dealing with municipal and regulated utilities is a fact of life for property owners and managers. Many knowledgeable professionals do not realize that the easement agreements they routinely sign are often negotiable, particularly where a municipality is trying to entice you to locate in their jurisdiction or a utility is seeking an easement across your property to serve another.

Seemingly innocent utility agreements are binding contracts which can include some serious traps for the unwary. Following are some practical suggestions to consider before signing a utility's "standard form."

The workings of the easement

A grant of a utility easement is too broad. Typical form easements will include language permitting other uses. Electric easements, for example, routinely permit the utility to grant rights to cable television or telephone companies (which are often granted for a fee which the landowner never sees). This can mean additional guy wires and traffic on your property when maintenance is required. Specify whether the easement is for electric service, gravity sewer, water, and so forth.

You can often negotiate a reduction of one-third or more in the width of any requested easement. In many instances, the space required by construction equipment, as opposed to that needed for the facilities actually located in the easement, is the governing factor.

Overhead easements often require a greater clear area on the ground, and many property owners prefer utilities to be buried. An unintended underground easement can interfere with your ability to install underground improvements, including other utilities, in the same location.

Avoid "more or less" and other vague phrases, and locate all boundaries by reference to specific landmarks. This is especially important for easements which are not adjacent to property lines. A little attention up front may pay dividends if you later finance with a picky lender or want to expand your building on an already tight site.

Many agreements include vague provisions which allow a utility to install "other necessary or related equipment" Describe the dimensions and location of all ground-located equipment to avoid interfering with parking or other uses you may later have for the easement area. For an overhead easement, it may be necessary that the locations of the poles be designated, or that the structures be limited to a line of single poles carrying one wire.

Remember that a grant of an easement is usually forever, and a utility will not hesitate to locate additional facilities on your property to serve future customers when the need arises.

Particularly where the easement is not for your benefit, you should place the burden upon the utility to verify the status of title. If a warranty must be given, be sure to have your mortgages subordinate its lien.

Know your rights

Any provision limiting the time within which you must notify the utility of a claim against it, or otherwise limiting the damages for which it is responsible should be deleted. The utility may argue that the limitations it is inserting are merely a statement of existing law. If that is so, then it is unnecessary to make them a matter of contract, and the law may later change to provide the utility with less protection.

Strike language permitting the utility to cut and clear outside the easement boundary. Specifically require the utility to remove all debris you do not want.

Never permit a transfer of less than all of the "bundle" of easement rights. In the event of damage to your property, you want to be able to look to a single party. Strike any provisions permitting the granting of sub-easements or licenses, or a sharing of the easement with other utilities. A transfer of the entire easement is acceptable.

Some utilities are very reluctant to release easements, even if they have no anticipated use for them. Temporary easements should terminate on a given date, whether or not they may end upon the happening of some other event which may or may not occur when expected. Permanent easements should terminate if they are not in use.

Language allowing expansion or extension of the easement "as necessary" is the same as granting the utility an unrestricted right to future easements anywhere on your property. Similar language describing facilities to be located within the easement should be replaced with language allowing the replacement or substitution of substantially similar facilities, after specifically describing the type, size, and location of the facilities to be replaced.

Preserve your future rights to build fences, parking lots, and similar structures on the easement area and your rights to grant any co-extensive easements you may later need. Consider a provision requiring relocation of the easement to accommodate future development. Depending upon the type of utility and who is receiving the benefits, the cost of relocation may be carried in whole or in part by the utility.

Restrict the utility's right to cross your property to reach the easement to situations where access by the easement itself is impractical. When your property is used, require the utility to use the most direct route, and to use your property in such a way as to occasion the least damage. Include an affirmative obligation to repair damage to your property, whether the damage occurs within or without the easement area.


The suggestions described above draw their life from an often overlooked fact-it is your property. Give the utility only what it reasonably needs, and remember that the forms it hands you are not divine.
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Author:Lingerfelt, David L.
Publication:Journal of Property Management
Date:May 1, 1990
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