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Drafting an Effective Easement Agreement

On Behalf of | Jan 5, 2022 | Firm News

If you own or plan to own real estate, you may be wondering how easements may affect your property in the future.  An easement, otherwise known as a right of way, is a right granted to an individual (the holder) to use property not owned by the holder.  However, the holder of an easement does not have the right to possess or exclude others from the land.

You may be familiar with utility easements that allow cable, telephone or electric companies to place equipment or wires on private property for the purpose of providing services. An easement that allows an individual to drive across neighboring property to reach a road is called an affirmative easement.  An easement that prevents a neighbor from building a fence that would obstruct his or her neighbor’s view is called a negative easement.  The land that benefits from an easement is the dominant estate, while the land burdened by the easement is the servient estate.  Easements run with the land, meaning easements pass to subsequent property owners.

While easements can be created by prescription or necessity, easements are typically created by deed or through another written document or will.  Such easements are called easements by agreement.  Under an easement by agreement, the owner of the servient estate voluntarily enters into an agreement to grant an easement to the dominant estate.

When drafting an easement agreement, it is important to cover all details to protect the rights of all parties.  Establishing a clear agreement will help prevent litigation and liability problems in the future.  The easement agreement should include a legal description of the land involved and an assignment of maintenance obligations.  Additionally, the agreement may include provisions addressing potential liability issues.  Parties may also wish to include a covenant guaranteeing the benefitted party undisturbed use of the easement.

Careful language and thorough drafting are important when creating an easement agreement.

Contact an experienced Missouri real estate attorney at the Quitmeier Law Firm can provide the guidance you need to draft an easement agreement.