Legal Aspects of Easements
Table of Contents
2. CREATION OF EASEMENTS
• CHARACTERISTICS OF EASEMENTS
• CONTINUANCE OF EASEMENTS RIGHTS
• AMERITECH'S POLICY REGARDING RECORDING OF EASEMENTS
• TYPES OF EASEMENTS
• RELEASE OF EASEMENTS
• EASEMENT MODIFICATION AND SPECIAL CLAUSES
• TEMPORARY COMMITTMENTS TO PROPERTY OWNERS
• RELOCATION CLAUSES
This section provides basic guidelines in the definition of easements and how they are obtained.
Whenever this section is revised, the reason(s) for revision will be stated in this paragraph.
An easement is a non-possessory interest in land. It is defined as a right to use public and/or private property for a special or particular purpose. Easements may be created for a variety of purposes, including access to the property, pole lines, buried and/ or underground facilities. They may involve the right to use only the subsurface of the land, only the airspace over the land, or only the surface of the land. They may include more than one of these factors, as in the case of an underground communications cable that includes the right to use the surface of the land for the placement of an equipment cabinet.
The duration of an easement may be measured in the same manner as a possessory estate: for years, for life, or in fee. An easement that has the potential of enduring forever is an easement in fee simple. This is the most common kind of easement and is usually called merely "an easement," not "an easement in fee simple." An easement cannot be terminated at will. An easement that is terminated at will is not an easement; it is a License.
The rights granted in an easement may be granted exclusively to one user or non-exclusively to benefit many users. Easements may be affirmative or negative. An affirmative easement conveys to the grantee an affirmative right to enter upon the land of another to perform some function such as the construction of an underground cable. A negative easement restricts the owner of the property from using his/her property as he/she otherwise could, e.g., an easement which prohibits the grantor from building a fence within the confines of the easement area.
Easements granted to Ameritech and relate to the rights acquired to occupy the lands of another with whatever structures are designated, together with the appropriate "incidental rights" of ingress, egress, to open fences, overhang parcels, etc.
2.CREATION OF EASEMENTS
Easements can be created by grant, agreement, adverse possession, express reservation, implied reservation, prescription, estoppel, dedication, or condemnation.
The type of easements most commonly acquired by Ameritech and its operating companies are created by grant, dedication, and/or by adverse possession.
• Easement by Grant
• Easement by Dedication
• Easement by Adverse Possession
2.1 EASEMENT BY GRANT
An easement created by grant is in the form of a conveyance from a grantor (property owner(s)) to a grantee (user(s)). The "grant" of a easement creates an interest in the land. Therefore, by law, the grant must be in writing and signed by the grantor.
2.2 EASEMENT BY DEDICATION
An easement created by dedication comes into being through "utility easements" granted by a developer dedicated for the use of public utilities for the placement of their facilities. Whether or not such dedication creates a valid easement in one public utility or another can be open for question.
2.3 EASEMENT BY ADVERSE POSSESSION
An easement created by "adverse possession" comes into being when within the number of years specified in the state statute of limitations, the owner of the property in question does not take legal action to eject Ameritech from using his/her property. The statutory period for adverse possession varies from state to state and may be anywhere from five to twenty five years. Verification should be made with the Legal Department regarding a specific state's statute.
The rights and privileges enjoyed by private landowners are not absolute. The time often comes where the property owner must give up all or part of his/her land for the public good. The authority for taking land for use rests in the concept of "eminent domain." In the United States the power of eminent domain has been limited. Private property may also be taken for public use and just compensation must be made to the owner.
The decision to proceed with condemnation for an easement is the responsibility our Legal Department. No discussion of condemnation should be held with the property owner; such action is unethical and is illegal.
4. CHARACTERISTICS OF EASEMENTS
Most easements continue forever (perpetual). However, in some instances, its termination may be dependent on the occurrence of some stated event. (If the grantor of an easement had only a life estate in the property concerned, the easement would automatically terminate upon the death of the grantor.) But whatever its duration, perpetual or otherwise, an easement is irrevocable during its life and is protected against the will of the property owner and/or third parties to terminate it.
An easement "runs with" the land in the sense that ;hose who follow the property owner in the ownership of the land acquire the property subject to the rights created by the easement, (Refer to paragraph 5.0 for the exception.)
An easement is like any other form of real property; it is subject to condemnation in the instances allowed by law, provided compensation is made for the loss incurred
An easement may also be terminated by the positive action of the one owning it: (1) by a formal release running to the landowner concerned, or (2) by a formal statement of abandonment.
An easement may also be extinguished by abandonment as evidenced negatively by non-use. Non-use by itself, however, does not constitute abandonment, no matter how long continued. The intention of the owner of the easement is all-controlling, but non-use, for whatever period of time, can be indicative of such intention.
5. CONTINUANCE OF EASEMENTS RIGHTS
Although an easement "runs with" the land and normally will be enforceable against those who follow the grantor in the ownership of the property, it will be unenforceable against a subsequent purchaser who bought the land for a valuable consideration and who was not chargeable with notice of the existence of the easement. The owner of the easement, therefore, if he/she wishes to preserve it, must provide notice that will prevent a subsequent purchaser from taking the land free of the easement.
• Public Record
• Affirmative Notice
6.1 PUBLIC RECORD
The most effective method of providing the required notice of easements is to record the easement immediately upon procurement. Every conveyance which is not recorded by law shall be void against any subsequent purchaser in good faith and for a valuable consideration of the same real estate or any portion thereof whose conveyance shall first be duly recorded.
Appearance in record is one form of constructive notice. Even though a subsequent purchaser may not in fact have actual notice or knowledge of a recorded instrument he/she is charged with such notice or knowledge as a matter of law, and if he/she acts in ignorance of the record he/she acts at his/her peril.
Recording an easement is accomplished by delivering a signed grant, personally or by mail, to the County Recorder's (a.k.a. Register of Deeds) Office in the county in which the property is situated and paying the required fee, whereupon it will be entered in the appropriate records and returned. Easements should be recorded as promptly as is practicable after their procurement. (If the property in question is sold prior to the easement being recorded, it is considered worthless. Refer to 4.1.)
6.2 AFFIRMATIVE NOTICE
A subsequent purchaser may also be charged with notice apart from the record if he/she has: (1) actual notice and/or (2) constructive notice.
In the case of an "actual notice," the subsequent purchaser by personal knowledge knows of the existence of the easement. This knowledge may be gained via the seller.
A constructive notice is the notice supplied by "appearance in the record," the easement which has been recorded. In addition to the constructive notice, legally inputted notice may be supplied by the use or occupancy of the land, as long as such occupancy is capable of disclosing prior interest (easements created by adverse possession). Consequently, because poles, aerial wires and cables and other such structures that have been placed above ground meet the criteria of being: actual, visible, open and notorious; an easement covering such structures, even though it has not been recorded, would be good against a subsequent purchaser, as long as he/she had the opportunity of viewing the property prior to purchase.
Note: This would not necessarily hold true with respect to easements containing underground and/or buried plant. If nothing were visible aboveground that indicates the presence of something underground, such underground or buried plant plainly would not be "actual, visible, open and notorious." But to the extent that marker posts, terminal pedestals, buried cable signs and the like would be deemed to indicate the presence of something underground.
7. POLICY REGARDING RECORDING OF EASEMENTS
All easements should be recorded. Generally, easements are not given as a gift; therefore, they cost something, either by way of monetary compensation to the property owner or by way of some other valuable consideration. Although recorded easements appear in a landowner's Abstract of Title, a fact which will increase the cost of him/her to bring his/her abstract up to date, it would appear that it is impractical to record easements which are acquired at no cost. However, a recorded, properly worded, executed and acknowledged easement will:
• Provide legal protection to the facilities placed
• Establish and maintain fidelity of service
• Establish a legal right to use the property of others
• Provide a definite and permanent location for the facilities
• Give constructive notice of all encumbrances against the property
• Spell out the obligations of the property owner and Ameritech
• Establish a legal basis for collecting for plant moves and damages requested by and/or caused by others
• Allow ingress and egress rights
8. TYPES OF EASEMENTS
• Private Property Easements
• Easements by Dedication
• Public Highway Easements Abutting Right of Way
8.1 PRIVATE PROPERTY EASEMENTS
By definition, the private property easement secured is by grant in the form of a conveyance from grantor (property owner) to grantee (property user). It grants the right to use a property owner's land for a certain, definite purpose. The easement should grant:
• The right to place, replace, maintain, or remove telephone plant at a specific location.
• The right of access to communication facilities that have been placed on the property.
Care of property and courtesy to the owner should be the primary consideration of all employees entering upon private property. The attitude of workmen toward property owners can create and maintain good relations for the company.
Easements of this type are to be recorded in the "County Recorder of Deeds" office so that where the land is conveyed or assigned the new owner acquires such land subject to the rights created by the easement.
The fact that you are maintaining plant on, along or under certain property does not establish a valid right of way, unless the public records show that an easement was acquired. The length of time you have been allowed to operate and maintain the plant has no bearing on your rights unless your state has "adverse possession" rights. Prior to assuming such rights verification should be made with our Legal Department.
Verbal permission is sometimes obtained to construct plant on private property. This practice is not recommended. Verbal permission does not provide a secure location for outside plant facilities because it is always revocable and may be terminated if the property is sold, the permitter dies, or just changes his/her mind.
When securing private property easements, ascertain if there is a mortgage on the property. The cost of the plant being placed, the value of the property and the amount of the mortgage will determine when you should obtain a mortgage subordination from the mortgagee.
A customer request for telephone service normally includes the right for placement of the necessary plant upon the customer's or landlord's property to provide the service. A specific grant of right of way is not ordinarily required under these circumstances. The customer must be contacted and informed as to the area you will be using to serve him/her. When it is expected that the facilities will be used for services to serve other than the owner of the property or his/her tenants, right of way must be secured for the entire installation.
Any unusual circumstances involving commercial or industrial properties that might require an easement across or into the property and/or building should be discussed with Ameritech-Legal.
8.2 EASEMENTS BY DEDICATION
Public utility easements are areas, usually within subdivisions, provided for public utility purposes. They may also be created by dedications by the subdivider and identified as private easements for public utilities on subdivision maps filed in the office of the County Recorder. The maps show easement boundaries, and the dedication language will determine how the easement may be used. The Agent is responsible for determining if the dedication is suitable for use. This type of easement is shared with other authorized utilities.
Utilities using dedicated easements have the right to place and maintain their outside plant facilities. In most instances, the property owner may fence, plant shrubs and utilize the easement area in this manner, as long as it does not interfere with the utilities' facilities. The zoning commissions in most cities and counties prohibit encroachments of structures on dedicated easements without approval of all utilities serving the area.
Additional easements not covered by dedication on the recorded plat may be required for the placement of equipment cabinets, CEVs, huts and/or additional outside plant facilities. Universally, these additional easements are secured from subdividers or developers without payment and recorded. If lots of the subdivision have been sold, the Agent must then deal with the individual owners, pay for and record the easement.
8.3 PUBLIC HIGHWAY EASEMENTS ABUTTING RIGHT OF WAY
Highways are established by the power of the state or municipal subdivision. The state may and does determine, within constitutional limits when, where and how highways shall be built.
The various states' departments of transportation exercise those powers required to construct state highways. In the case of counties, cities, villages and towns, the power to establish and maintain highways has been delegated by charter or statute to the governing bodies of those municipal subdivisions of the appropriate state.
The majority of the right of way the department of transportation acquired for highways prior to the 1950s was secured by a standard form of "Dedication of Right of Way for Public Highway Purposes."
This type of deed did not grant absolute ownership to the state; instead the landowner continued to own the land and the state had only an easement for the road.
Some of the right of way after this time has been acquired by taking fee title. If the state has fee title to the right of way, only its permission is necessary to construct plant.
If the right of way was acquired by dedication for road purposes, you must secure rights from the abutting property owner.
There is no general rule as to whether or not it is necessary to secure permission from the abutting property owners when your plant is to be located within the confines of public highways. It is necessary to consider each case on its own merit as the dedications, if any, may contain reservations whereby the abutting owners reserve for themselves interest in the land.
It is a fact, however, that most of the dedications are easements, for highway purposes only, and title in the land is held by abutting owners. This is particularly true of the older roads, and in such cases you should secure signed easements from the abutting property owner.
The following instructions shall apply in general to the securing of abutting right-of-way easements outside of municipal limits.
• Right-of-way easements shall be secured for aerial and buried cables, conduit, equipment cabinets, poles, huts and controlled environmental vaults, and recorded in the appropriate county records. Persons signing such easements shall be informed of the recording.
• The Right-Of-Way Agent shall check the county records, to secure a title report, if necessary, to determine the legal ownership of the property involved.
• If an easement has been previously recorded against a property, a check with the Legal Department should be made before securing a new easement.
• The securing and recording of the abutting easement will protect your rights with subsequent owners, will provide protection on future highway improvements, and will ensure your rights should the highway be later vacated.
The increasing growth of condominium ownership of residence and business buildings can create problems in the design, construction and maintenance of telephone plant.
A condominium has been defined as "a system of separate ownership of individual units in a multiple unit building." The owner of a condominium also has an interest in the common areas of the development such as the gardens surrounding the building, the drives entering into and from the project, and recreational areas. The upkeep of the common areas is maintained through a non-profit corporation, membership of which is comprised of the various condominium owners. The owners, in turn, select a board of directors and officers, and it is this corporation, acting through its directors and officers, which controls the use of the common elements comprising the condominium development. It is with these officers and directors that the Right Of Way Agent must deal when proposing to install telephone plant.
This could pose problems after the corporation has been set up. The best approach is to contact the condominium developer at an early date and agree as to the location of utility easements and how each unit is to be served. This will minimize problems with the subsequent condominium owners.
Telephone wires, cables, terminals, etc., should be constructed and located in a manner to provide accessibility for installation and maintenance without invasion of an individual unit to provide or maintain service to any other unit.
Telephone plant should be located in or on "common elements" of the property or in easements in such a manner as will not compromise the privacy of use or create unnecessary annoyance to a unit owner during installation or maintenance of service to another unit.
9. RELEASE OF EASEMENTS
From time to time it may be necessary to relinquish certain rights of way to accommodate a property owner's future plans. In these cases, it may be necessary for Ameritech to "release" its easement rights.
These requests may involve the releasing of an easement in its entirety, or it may only be a request for a partial release of easement. Certain building encroachments may be involved, or it may be requested to allow for re-subdividing of lands.
In any event, no matter what the reason, a thorough investigation must be made before issuing the release of easement to protect existing and future uses of the right of way.
• What is the reason for the release request?
• What type of right of way is being released, e.g., is it an exclusive Ameritech easement, or is it a platted easement provided by the developer/owner when a subdivision was first created?
• Is the right of way being used today? If so, what kind of outside plant is located on the easement and what does it serve?
• What is the Ameritech's future plans for the right of way?
• Is a replacement easement needed? If so, will the property owner pay the cost of relocating the facilities and grant a replacement easement at no additional cost?
• If an encroachment is requested by the property owner, will the encroachment allow Ameritech to continue to utilize the easement to its full potential, now and in the future?
• It is recommended that request for releases be viewed from a positive approach. It is to Ameritech's best interest to cooperate as much as possible to help property owners use their land to its full potential, providing such use does not interfere with Ameritech's present and future needs.
10. EASEMENT MODIFICATIONS AND SPECIAL CLAUSES
Property owners may request a change in the wording of the "standard" easement documents used by Ameritech or insist on a special form of their own preference. Whenever possible, this should be avoided. Ameritech's easement documents are worded to provide clear, concise and suitably phrased statements to ensure its outside plant facilities are adequately protected.
Major changes in standard right-of-way documents which restrict or materially alter statements of rights must always be approved by Legal. This is also true if the easement document is prepared by outside attorneys, other companies, and/or property owners.
When modification clauses are made to standard right of way documents, the individual acquiring the easements along with the property owner must initial such changes to indicate that both are in agreement.
Samples of acceptable modification clauses may be found in Section 15 of this handbook.
11. TEMPORARY COMMITMENTS TO PROPERTY OWNERS
There are certain restrictions or requests of a temporary nature that should be omitted from easement agreements whenever possible. It serves no useful purpose to include statements about commitments relating to the type of equipment, hours of construction, methods of construction, etc., to be indicated on the easement document. If the property owner insists, a separate "letter of agreement" should be used to ensure that these commitments are met.
A sample letter of agreement can be found in Section 9 of this handbook. (Refer to Sample Letter #2.)
12. RELOCATION CLAUSES
The relocation clause is the single most requested restriction with which property owners are concerned.
"Paid-for" rights of way should not contain relocation clauses or permit the construction of buildings within the confines of the easement area; however, if a relocation clause is inevitable, the following language is preferred:
"The Grantor will restrict requests for changes only when their property is in immediate peril or the normal functioning of the Grantor's operations are being inhibited. Should the Grantor's building construction reasonably necessitate relocation or alteration of the communications facilities of the Company because material interference, such changes shall be made by the Company within reasonable time after written notice by the Grantor. Relocation costs shall be paid by the Grantor. If necessary, the Grantor will, at no cost charged to the Company, furnish a new easement for the Company's facilities at a location on the Grantor's property which is mutually acceptable to both parties."
When a relocation clause is added to the easement document, the payment should be reduced to reflect the lesser rights being obtained.
Easements are important legal contracts and must be prepared with care. They establish a legal right for outside plant facilities to be placed on private property and to remain undisturbed throughout their full economic life.
Easements provide (1) a basis for legal claims to recover costs in damage cases, and (2) reimbursement when outside plant facilities must be prematurely relocated to clear private or public works projects.
It is the information entered on the easement document that converts it to a useful record of agreement between a property owner and the easement lessee. Accordingly, concise, clear and accurate easement preparation is a basic requirement for minimizing the possibility of misinterpretation of intent by the property owner or the company who has easement rights.