Law of Easements CLE

 

I.                    Basics of Easement Law

a.     Characteristics

 

An easement is a real property right entitling the owner of the easement (the dominant estate holder) to use real property that is owned by another (the servient estate holder) on a non-exclusive basis.

 

b.     Distinguishing easements from other rights

 

Although easements share commonalities with certain other real property rights such as leases, licenses, management agreements and fee ownership, easements are nonetheless distinguished from each of those rights.

 

                                                               i.      leases

 

The fundamental difference between a lease and an easement is exclusivity of possession.  Subject to the terms of the lease, a tenant under a lease is entitled to exclusive possession of the property being leased to it.  Easements are often overlooked as viable alternatives to either leases or licenses.  However, virtually all of the attributes desired in a lease may also be achieved in an easement agreement, and an easement agreement may be a preferred choice where the “tenant” desires a real property interest (which will enjoy additional protection in the event of a “landlord” bankruptcy) and the “landlord” wishes to preserve access to the “premises” on a non-exclusive basis with the “tenant” or another occupant of the “landlord’s”.  Such a situation may arise if an occupant contemplates making a substantial financial investment in improving the space that is to be occupied but the property owner still needs to retain significant access to the occupied space.  For example, an easement may be the appropriate document in the following cases, provided the applicable occupant is required to make a substantial capital investment of its own funds in non-removable improvements within the applicable space:  a cell phone tower operator for a tower that constructed upon a structure that is owned by the property owner, for a substantial kiosk occupant in a shopping center, for a substantial concession stand in a store or shopping center, or for the portions of a nightclub or lounge area that spill over onto the property owner’s property. 

 

                                                             ii.      licenses

 

The fundamental difference between a license and an easement is that a license is not a real property right at all.  A license merely permits an occupant to be present upon the property of another within the licensed area without being deemed a trespasser.  A licensee, however, is not entitled to be put into possession of the property being licensed as a remedy if the licensor elects to exclude the licensee from possession.  At common law, a licensee’s only remedy for such a breach by the licensor is a claim for damages. 

 

However, there is a modern trend among courts of allowing specific performance as a remedy for such a breach, thus vitiating the primary difference between a lease and a license.  Nevada law is not settled on this point.  However, the distinction between licenses and leases is less important in Nevada than in some other jurisdictions, as the scant case law that exists in this area indicates a strong preference for classifying purported licenses as leases.  See, e.g., Sportsco Enterprises v. Morris, 112 Nev. 625 (1996).  As a result, a license must be carefully drafted in order to qualify as a license, and, even with careful drafting, will be subject to re-characterization by a Nevada court.  The best practice when a license is desired is to expressly address the remedy issue and provide for a waiver by the tenant/licensee of the right to injunctive or other relief that would have the effect of putting the tenant/licensee back into possession of the premises following an exclusion from the premises by the landlord/licensor.

 

Because a license is not a real property interest, there is a greater likelihood that the license may be discharged in bankruptcy.  Accordingly, a licensee who contemplates a substantial investment in the licensed space may find the risk of losing the right to occupy that space to be unacceptable and may, therefore, insist on a lease or easement agreement in lieu of a license.

 

                                                            iii.      management agreements

 

Management agreements are essentially very complicated licenses.  They convey no real property interest and no right to possession, exclusive or otherwise.  However, they do typically entitle the manager (which is the analog of a tenant under a lease) to operate certain services or operations within a defined area and, in consideration for such operation, provide for a share of the resulting revenues.  As with a license, a manager’s remedy for a breach of the management agreement is a claim against the owner for damages and not a right to recover possession of the managed area.  Where terms beyond those that would typically be set forth in an easement are desired, a management agreement may be paired with an easement to complete a deal in which the complexities of a management agreement or lease are desired, while preserving both a more-bankruptcy-protected real property right for the manager and the owner’s right to joint possession of the subject property.  Under such a structure, it is important to consider whether the easement is onerous enough to convince a bankruptcy court that no other person could operate the affected property in place of the manager (such as by inclusion of a covenant in the easement that prohibits any other operator within the easement area), otherwise the preservation of the easement rights in a bankruptcy may be of little value.

 

                                                          iv.      fee ownership

 

Fee ownership entitles the land owner to possess, use and enjoy his or her land as he or she sees fit, subject to matters affecting title and applicable laws.  There is no general real property limitation on the scope of the uses to which an owner may put his or her property. 

 

c.     Types of easements.

 

Some attributes of an easement may vary depending on the categorization of an easement.  Easements may either be appurtenant or in gross, they may be positive or negative in character, they may be public or private or they may fall into certain other special categories, such as profits a prendre, conservation easements and solar energy easements.

 

                                                               i.      easements appurtenant or in gross

 

Easements may either be appurtenant to other land or may be in gross.  An easement is appurtenant to other land if it benefits such other land or the use of such land.  An easement is in gross if it benefits a particular individual or group of individuals generally and not any particular land owned by such individuals. 

 

Most practitioners are familiar with appurtenant easements.  An example of an appurtenant easement would be an easement under which an adjacent owner is given the right to use a road for access to the adjacent owner’s property that happens to cross the landowner’s property.  An example of an easement in gross would be an easement granted to a favorite nephew to hunt on the landowner’s property.

 

Easements appurtenant and in gross differ principally in how they are transferred.  An appurtenant easement may be transferred only pursuant to a transfer of the land that benefits from the easement (the “dominant estate”).  A transfer of the dominant estate will automatically transfer all easements appurtenant to such estate, even if no specific mention of the easement is made in the deed.  An appurtenant easement may not be severed from the dominant estate and, thus, may not be transferred apart from a conveyance of the dominant estate.  By contrast, easements in gross were, under common law principles, non-transferable rights that were personal to the holder of such rights.  Thus, in the example cited above, under common law principles, the nephew would not be permitted to convey his easement to hunt on his uncle’s property to anyone else, unless the nephew were, say, a furrier or otherwise hunted for commercial purposes. 

 

It is unclear whether a Nevada court would consider an easement in gross to be transferable.  Other jurisdictions that have considered the issue have reached differing conclusions.  However, under the Restatement, which likely represents the majority rule, a non-commercial easement in gross’s alienability should be “determined by the manner or the terms of their creation”.  Rest. Property, §§ 491-492.  Thus, the critical inquiry is as to the intention of the parties at the time of the grant.  Powell takes this a step further and urges that all non-commercial easements in gross be deemed to be transferable, “except those demonstrably intended to benefit only the individual who is the first recipient”.  4 Powell on Real Property, § 34.16.

 

                                                             ii.      negative easements

 

Positive easements permit one person to enter onto or do things on the property of another.  By contrast, negative easements entitle the holder of the easement to prevent another person from doing something on that person’s own property, but do not permit the holder to enter onto or use such property.  Common types of negative easements include easements for light, air and view.  Negative easements may be created only by an express grant in Nevada.  See Probasco v. City of Reno, 85 Nev. 563, 565 (1969) (“Nevada has expressly repudiated the doctrine of implied negative easement of light, air and view . . .”).  According to the Restatement (Third) Servitudes, § 1.2, cmt. (b), negative easements are “indistinguishable from [] restrictive covenants” and are, thus, subject to the same rules that govern restrictive covenants.

 

                                                            iii.      public vs private easements

 

Most of the easements discussed above are private easements that benefit a particular person or land owner.  However, through a dedication, an easement may also be granted to the public generally.  The creation of such public easements generally requires both an offer of dedication and an acceptance of that offer.  An offer of dedication may be in the recording of a plat, by opening the applicable area to the public, by following formal, statutory dedication requirements, or by other conduct that indicates an intention to dedicate.  An offer of dedication may be accepted either under statutory procedures, expressly by a public authority, under common law estoppel principles or by use of the dedicated easement by the public for a period that is long enough to indicate an intent to accept.  14 Powell on Real Property, § 84.01[6][b].

 

The Nevada Supreme Court has further elaborated on the dedication process:  “A dedication is a gift of land by the owner for an appropriate public use, such as a street.  Dedications may be classified as either statutory or common law.  A statutory dedication operates by way of grant, vesting in the municipality the fee for public use.  Under a common-law dedication, however, the fee of land dedicated for a street remains in the owner, subject to a public easement in the land, which is vested in the municipality.  A common-law dedication rests upon the doctrine of estoppel in pais, which extends an owner-permitted use of private property to protect the public's expectation of continued use.  The recording of a plat may qualify as a statutory dedication, or at least evidence of an intent to make a common-law dedication.  Finally, the party asserting a dedication bears the burden of proof.”  Carson City v. Capital City Entertainment, 118 Nev. 415 (2002) (citations and note omitted).

 

Formal acceptance of a dedication is not required when, among other circumstances, the dedication would impose no burden on the applicable jurisdiction.  Thus, the accepting jurisdiction will be presumed to accept the dedication of a plaza or other open space.  McKernon v. City of Reno, 76 Nev. 452, 460 (1960).  By contrast, the dedication of a way involves substantial cost in improvements, repairs, and maintenance, and, as such, would not be presumed accepted.

 

                                                          iv.      conservation and solar energy easements

 

NRS 111.370-380 and 111.390-440 provide for easements for solar energy and conservation, respectively.  The texts of those statutes are included in Exhibit A to this paper.

 

                                                            v.      profits a prendre

 

A profit a prendre is a right to go upon the land of another and extract products of the soil, including minerals, timber and gravel.  No significant distinctions exist between the rules governing profits and those governing easements.  Rest. Property § 450, “Special Note”.  However, there is one practical distinction—although courts will generally imply easements to get to the “profit” that is to be extracted under a profit a pendre, it is better practice to describe the actual route in the grant or reservation itself.

 

II.                  How easements are created

 

Easements may be created expressly (by grant or reservation), by implication, by prescription or by estoppel.

 

a.     implication

 

Easements may be granted or reserved by implication.  An easement may be implied by existing use, plat, necessity, or grant of another real property interest. 

 

                                                               i.      existing use

 

“[T]he three essential characteristics of an easement by implication [from existing use are]:

 

(1) unity of title and subsequent separation by grant of the

dominant tenement;

(2) apparent and continuous use; and

(3) the easement must be necessary to the proper or reasonable enjoyment of the dominant tenement.”

 

Jackson v. Nash, 109 Nev. 1202, 1213-14, 866 P.2d 262 (1993) (internal citations and quotation marks omitted).  Further elaborating on the second requirement listed above, the court stated “at the time that the common owner severed the two parcels, the owner must have been using one parcel so as to benefit the other in an apparent and continuous manner . . . [such that] a purchaser could reasonably have expected, without further inquiry, that these benefits were included in the sale.”  Id. 

 

The scope of an easement by implication is defined by the “reasonable expectations” of the purchaser (and not necessarily by the actual expectations or intentions of either party).  See Boyd v. McDonald, 81 Nev. 642, 652n.12 (1965).  Specifically “to be considered [in ascertaining the reasonable expectations of the purchaser] are the purchase price, relations between buyer and the seller now severing his heretofore uniform parcel, conduct of persons in similar positions, and occurrences which would put a reasonable man purchasing property on notice at least to inquire further as to the extent of his purchase”.  Id. at 649 (citations omitted).

 

            As with a prescriptive easement, an interruption in the continuous use of the path (sometimes called a “quasi-easement” while all property is still owned by the common owner) will defeat a claim of easement by implication.  Thus, “[t]he construction of a fence or otherwise blocking the roads may be considered as evidence of the interruption of apparent and continuous use."  Alrich v. Bailey, 97 Nev. 342, 344 (1981).

 

                                                             ii.      necessity

 

The principal difference between the elements of easements by implication by use and by necessity is that no prior use of the easement is required in an easement implied by necessity.  Thus, “questions addressing prior apparent and continuous use, which are quite significant in connection with easements by implication, are not applicable to easements by way of necessity. A way of necessity arises from the application of the presumption that whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses.”   Jackson v. Nash, 109 Nev. 1202, 1209 (1993).  Therefore, an implied easement by necessity will generally be found to exist if two requirements are met: “(1) prior common ownership, and (2) reasonable necessity.”  Jackson v. Nash, 109 Nev. 1202, 1211, 866 P.2d 262 (1993).  “The necessity must pertain to the use and enjoyment of land adjacent to the servient estate.  . . .  While a showing of reasonable necessity does not require that the passageway be the only one available, something significantly greater than inconvenience to the party claiming the easement must be shown.  Although substantial inconvenience is a factor, it must be weighed against the burden and possible damage that could result from imposing an easement across another's property.  . . . Present necessity, as well as necessity at the time of severance, must also be shown.”  Id.  In addition, even a showing of necessity may be overcome by “uncontradicted evidence that indicates a contrary intent.  An easement by necessity will not be imposed contrary to the actual intent of the original grantor and original grantee.”  Jackson, 109 Nev. at 1212.

 

In Breliant v. Preferred Equities Corp., 112 Nev. 663 (1996), the court strongly implied that the requisite necessity might arise by virtue of local zoning (or, presumably, other) laws.  Thus, in that case, the necessity would apparently have been shown because the parking spaces within the claimed easement area were needed for the dominant estate to comply with local zoning ordinances for the (non-conforming) use of the building.  Id. at 673.  (This conclusion was not ultimately necessary to the court’s decision as the court found that an express easement provided the dominant property owner with sufficient parking to meet zoning requirements for the existing use of the dominant property.)

 

                                                            iii.      plat

 

When property is conveyed by reference to a plat, easements are implied in the streets, parks and other common areas shown on the plat.  4 Powell on Real Property, § 34.06.

 

                                                          iv.      grant of profit a prendre or other real property interest

 

Easements may benefit any real property interest, not just fee interests.  Thus, easements may be implied to provide access to the minerals granted under a profit or may be implied to provide access over shopping center common areas to shopping center premises, even if not specifically mentioned in the profit or lease.  Whether such an easement is to be implied will be by virtue of one of the methods of implication previously discussed.

 

b.     grant or reservation

 

An easement may be created expressly, either by a grant from the servient property owner or by a reservation in a deed from the dominant property owner.  The formalities required and practical considerations that should be taken into account in drafting an express easement are discussed more fully below.

 

c.     prescription

 

“In Nevada, adverse, continuous, open and peaceable use for a five-year period are the requisite elements for claiming an easement by prescription. Stix v. La Rue, 78 Nev. 9, 11, 368 P.2d 167, 168 (1962). Exclusivity is not a requisite element. Id. at 14, 368 P.2d at 169. Adverse use is established by asserting a right to use the land. Michelsen v. Harvey, 107 Nev. 859, 863, 822 P.2d 660, 663 (1991). The standard of proof in establishing an easement by prescription is clear and convincing evidence. Wilfon v. Hampel 1985 Trust, 105 Nev. 607, 608, 781 P.2d 769, 770 (1989).”  Jordan v. Bailey, 113 Nev. 1038, 944 P.2d 828 (1997).  Prescriptive rights may be acquired by one or more individuals or the public as a whole.  See Groso v. Lyon County, 100 Nev. 522, 523-4 (1984).

 

Adverse Use.    Different presumptions as to adverse use arise in cases in which improvements are constructed within the easement area, depending on who constructs the improvements.  Thus, an adverse use may be inferred “where a prescriptive easement claimant creates or establishes a roadway on another's property”.  Wilfon, 105 Nev. at 609.  By contrast, “[w]here a road is established by the [record owner] landowner, there arises a presumption that its use by others is with the permission of the landowner.”  Id. at 610.  That presumption cannot be rebutted by mere “[m]aintenance and improvement of a portion of the way” by the easement claimant.  Jackson v. Hicks, 95 Nev. 826, 829 (1979).  However, “no presumption of permissiveness will arise where the road was for many years the only means of ingress to and egress from the dominant estate and was not established by the owner of the servient estate for his own use.”  Richardson v. Brennan, 92 Nev. 236, 240 (1976) (driveway was apparently constructed by lessees of the federal government prior to conveyance by the government to the servient owner’s predecessor in interest).

 

Where no improvements are involved, a presumption of permissiveness arises.  Thus, “[c]ourts are reluctant to find a prescriptive easement over open and unclosed land since such use tends to be permissive in nature and does not imply a hostile or adverse use.”  Id. (citations omitted).    

 

If the initial entry is determined to have been permissive, the question sometimes arises as to whether the easement claimant’s use has subsequently become adverse.  On that point, the Nevada Supreme Court has held, “A permissive use cannot ripen into an adverse use absent specific notice to the owner of the servient estate that such use is henceforth adverse for purposes of creating a prescriptive easement. Green v. Stansfield, 886 P.2d 117, 120-21 (Utah Ct. App. 1994).”  Jordan, 113 Nev. at 1046.  "[The] mere use of a passage over another's land for a long time with his knowledge is not necessarily an adverse use. The circumstances may be such as to authorize an inference that the use is adverse but they may also be such as to intimate that the use was by permission."  Turrillas v. Quilici, 72 Nev. 289, 291, 303 P.2d 1002 (1956) (citations omitted).

 

Perhaps ironically, a stronger showing of proof of adversity is required “in a case between relatives than that required in a case between strangers”.  Brooks v. Jensen, 87 Nev. 174, 178 (1971).  In addition, in the analogous context of adverse possession, adverse possession is denied as a matter of law if “possession was thought by all concerned to be the possession of an owner of the parcel, and not possession adverse and hostile to the true owner thereof”.  Id.

 

Continuity.  Brief interruptions in access over a prescriptive easement due to weather and alterations are not sufficient to negate the element of continuity.  Id. at 1047.

 

d.     estoppel

 

The doctrine of equitable estoppel that applies throughout contract law is also applicable in the easement context.  Accordingly, an easement by estoppel may be created by satisfying the same requirements for an equitable estoppel as are applicable in other contexts:

 

“(1)     The party to be estopped must be apprised of the true facts;

(2)       he must intend that his conduct shall be acted upon, or must so act that the party asserting estoppel had the right to believe it was so intended;

(3)       the party asserting estoppel must be ignorant of the true state of facts;

(4)       he must have relied to his detriment on the conduct of the party to be estopped.”

 

Breliant, at 673-4.  “The burden of proof is upon the party asserting the estoppel.”  Id. at 674.

 

III.                Drafting of (express) easements, basic elements:

 

Many of the concepts discussed in the text below are provided for or further elaborated on in the example easement agreement attached to this paper as Exhibit B.

 

a.     easement grant

 

The most basic component of an easement agreement is the grant of the easement.  At common law, there was a strong preference for use of the word “grant” in creating an easement.  Although no particular words are required or especially favored by our modern courts for the creation of an easement, “grant” is still the most commonly used word for that purpose.

 

b.     location, duration and purposes to which the easement may be put

 

Easements are of perpetual duration unless their terms specify an earlier expiration or termination date, subject to being extinguished as described more fully below.  Thus, if the parties wish for the easement to terminate at some point, then that must be specified in the easement. 

 

An easement should also set out to what uses the easement may be put.  Otherwise, a court will be free to impose those terms based on the court’s view of the intention of the parties, which may or may not actually reflect the parties’ intentions.  Easements are often identified with specificity by a metes and bounds or equivalent description or by reference to a well worn or otherwise easily identifiable path.  However, the exact location need not necessarily be identified in the easement.  Sometimes, the location of an easements is fixed only after further diligence is done after the easement agreement is entered into.  Sometimes, the location of an easement is never fixed, as in the case of some blanket utility easements which grant the utility company the right to install utilities anywhere on the servient parcel.  Whatever the terms of the particular easement agreement as to its location, those terms should be set forth in the easement agreement. 

 

Consideration should also be given to whether expanded easement rights will be required for the initial construction or subsequent repair, maintenance and replacement of the improvements within an easement.  Thus, temporary easements that are applicable only during periods of construction, repair, maintenance and replacement may need to be provided for.

 

c.     identification of the dominant estate, servient estate and which other licensees and invitees of the dominant estate holder may use the easement

 

In order to be enforceable, the easement must identify the servient property and, if the easement is to be recorded, that property must be described so as to satisfy all applicable recording requirements.  If the easement is to be an appurtenant easement, the dominant property must also be identified.  Consideration should also be given to who may use the easement, to what extent the easement may be used and under what circumstances such users may use the easement.  If any contingencies or conditions are to apply to the easement, its users, or any of their rights thereunder, those should also be set forth in the easement agreement.  If either party is to be entitled to specify rules for use of the easement, those should be set forth in the easement.  Finally, consideration should be given to defining circumstances under which the parties would consider the easement to be overburdened.

 

d.     allocation of initial construction and on-going maintenance, repair and replacement obligations

 

“As a general rule the owner of a servient estate is not bound, unless by virtue of an express stipulation, to keep the easement in repair, or to be to any expense to maintain it.”  Sinkey v. Board of County Commissioners, 80 Nev. 526, 529-530 (1964) (citations omitted).  An exception to that rule exists where the use is in common with the servient estate owner’s use, in which case the maintenance responsibilities are to be shared.  See Id.  “Where the easement is of such a character that a want of repair injuriously affects the owner of the servient land, it becomes not only the right, but the duty, of the owner of the easement to cause all necessary repairs to be made.  As, for instance, if one has an aqueduct by pipes or a gutter across the land of another, he is bound to keep these in repair, so that the owner of the land shall not be damaged by want of such repair.”  Thomas v. Blaisdell, 25 Nev. 223, 228 (1899) (citation omitted).  Accordingly, if those default rules and the uncertainty which the common use default rule produces are to be avoided, the easement should specify how construction, maintenance, repair and replacement obligations are to be allocated and to what extent, if any, the party undertaking those obligations is to be reimbursed by the other party. 

 

After those allocations of responsibilities and costs are established, consideration should also be given to the standard to which any improvements must be maintained.  In most cases it will be important (for liability, common use and aesthetic reasons) to the party who is not responsible for performing construction, repairs, maintenance or replacements (the “non-maintaining party”) that the other party (the “maintaining party”) perform all such obligations to a specified standard.  What should that standard be?  At a minimum, the maintaining party should be required to comply with applicable laws.  In addition, the maintaining party may also be required to construct a road or other improvement according to (a) the minimum standards required by the applicable local jurisdiction for acceptance of the way into the jurisdiction’s system of public streets or (b) according to pre-approved plans or (c) both.  A further more generic standard of “first-class condition” or “good condition” is also often required.

 

If the applicable construction, maintenance, repair and replacement standard is not met, consideration should be given to what remedies should be available to the non-maintaining party.  Often, if, after the expiration of a notice and cure period, the issue remains unresolved, the non-maintaining party will have a self-help right to perform the obligations and charge the cost back to the maintaining party.  In addition, the non-maintaining party will usually be entitled to pursue all legal and equitable remedies for such a failure.

 

The maintaining party’s obligations are often supported in multi-party reciprocal easement agreements, CC&Rs and similar instruments by lien rights in favor of the non-maintaining party (often a property owner’s association of some kind).  Such lien rights are less common in more traditional two-party agreements.  However, if the easement is to have a long duration or if the maintaining party’s obligations are substantial, then lien rights (in the maintaining party’s appurtenant land) or further security may be appropriate even in a more traditional two-party agreement.

 

e.     indemnification and insurance provisions

 

Because the dominant estate owner will, by virtue of the easement, have the right to come onto the property of the servient estate owner, the servient estate owner will be exposed to additional risks, including, for example, from hazardous materials contamination or tort and similar liabilities to those who use the easement.  Accordingly, those risks should be allocated in the easement agreement between or among the parties, and insurance should be required to support that allocation.

 

f.        relocation and alteration rights of servient estate holder

 

“It is a general rule of law that, in the absence of statute to the contrary, the location of an easement once selected, cannot be changed by either the landowner or the easement owner without the other's consent.”  Swenson v. Strout Realty, Inc., 85 Nev. 236, 239 (citations omitted).  Thus, if either party is to have the right to relocate the easement, that right must be spelled out in the easement.  Consideration should be given to the allocation of the costs of any such relocation.

 

g.     statute of frauds

 

The creation of an easement is subject to the statute of frauds.  NRS 111.205(1); Jim Marsh American Corp. v. Century Construction, 106 Nev. 727 (1990).  Accordingly, easements must generally be in writing and be signed by the party granting or reserving the easement.  See Jim Marsh American Corp., 106 Nev. at 728 (recordation of parcel map that was signed only by the dominant owner does not satisfy the statute of frauds).

 

h.     recording requirements

 

In order to enjoy the benefits of the recording act and, thereby, cause the easement to become binding even on subsequent bona fide, good faith purchasers of the servient property, the easement must be recorded.  NRS 111.325; Jones v. Bank of Nevada, 96 Nev. 661, 662 (1980).  As such, the requirements for the recording of an instrument, including, the requirements that the instrument be acknowledged, that it contain certain information and that it comply with several formatting standards, must be complied with.

 

IV.              Amendment and termination

a.     written release or agreement

 

The parties may agree to amend or terminate an easement through a written instrument.  If amending an easement, consideration should be given to the same issues that attend the initial grant of an easement.  In addition, an amendment may be a good opportunity to update items that have changed since the original easement was recorded.  For example, notice addresses should be updated, insurance requirements may require updating and agreements as to other matters that have arisen since the inception of the easement may need to be reduced to writing.

 

b.     merger

 

Under the doctrine of merger, an easement may be extinguished by common ownership of the dominant and servient estates.  Breliant, 112 Nev. at 670.  Following the extinguishment of an easement by merger, a new easement may arise under any of the doctrines under which a new easement may be created.  Id. at 671.  However, “the mere reference to an extinguished easement in a deed is insufficient, as a matter of law, to revive the easement.”  Id.

 

c.     ending of necessity

 

If the easement was created by implication by necessity and the necessity ceases to exist, then the easement itself is also extinguished.  Thus, if an easement by implication by necessity is for access to the dominant property and a public way is later constructed or re-located so as to provide access to the dominant property, then the easement would be extinguished upon the opening of the new public way.

 

d.     condemnation or involuntary destruction

 

An easement may be extinguished either through condemnation or, in some cases, through destruction.  An easement is an interest in real property and is therefore subject to condemnation.  NRS 37.020.  If the easement is through a structure or other destructible improvement (such as a common hallway or staircase in a building belonging to another) and the improvement is destroyed through no fault of the servient property owner, then such destruction will extinguish the easement.

 

e.     abandonment

 

“An easement once established . . . is presumed to continue unless there is a manifest showing of an intent to abandon it.”  Jensen v. Brooks, 88 Nev. 651 (1972).  Abandonment requires proof of two elements:  (1) non-use and (2) the intention of the dominant estate holder to abandon the easement.  Id. at 653.  “The loss of an easement by abandonment turns upon the intent of the owner of the dominant tenement, which intention is manifested by the circumstances of the particular case. Nonuse of the easement is evidence of an intention to abandon it.”  Id.  Mere irregularity of use or brief periods of closure of the applicable easement are not sufficient to show an intent to abandon.  Id.

 

f.        transfer of title in the servient estate to BFP without notice

 

This topic is discussed above in Section III(h).

 

g.     estoppel

 

The easement may be extinguished by estoppel by satisfying the same requirements applicable to the creation of an easement by estoppel.

 

h.     prescription

 

“An easement may be extinguished by, among other ways, prescription, provided the use is adverse to the easement's owner and such adverse use is, for the period of prescription, continuous and uninterrupted.”  Horgan v. Felton, 170 P.3d 982 (2007).

 

V.                Easement construction

a.     express easements

 

Specific Cases.  Several Nevada cases discuss the interpretation of express easements.  Rather than list a series of abstract principles that the courts use to interpret easements, I have summarized some of the more relevant cases below.  Thus, the reader can review both the relevant rules of construction and the application of those rules by the court to construe the actual language of the subject easements.

 

“The extent of an easement, like any other conveyance of rights in real property, is fixed by the language of the instrument granting the right.   Moreover, an easement must be construed strictly in accordance with its terms in an effort to give effect to the intentions of the parties.  Generally, easements are construed strictly in favor of the owner of the [dominant] property.  A party is privileged to use another's land only to the extent expressly allowed by the easement.”  S.O.C., Inc. v. The Mirage Casino-Hotel, 117 Nev. 403, 408 (2001).  Thus, an easement that is, by its terms "a perpetual easement for a pedestrian and maintenance easement for street-lights, traffic control devices and for detectors over, under, and across the parcel of land" may not be used for commercial or any other purposes.  Id. (quoting the easement at issue in that case).

 

In another case, the court interpreted the grant of “an easement and right-of-way, with full right of use over the roads of the grantor as now located or as they may be located hereafter (but such relocation to be entirely at the expense of the grantor) from the State Highway known as U.S. Route 50 to” the property of the grantee.  Cox v. Glenbrook Co., 78 Nev. 254 (1962).  The servient estate holder urged (and the trial court agreed with) several narrowing constructions of the easement.  First, the servient estate holder urged that the grant was ambiguous as to the scope of the easement—i.e., the privileges of use that are authorized by the easement—and that, therefore, the court should look to extrinsic evidence to interpret the easement’s scope.  (“Extrinsic evidence” means evidence other than the terms of the document itself.)  The court rejected this contention, holding that the “full right of use” was not ambiguous and thus, that the dominant estate holder was not restricted in the uses to which the easement could be put.  Id. at 262.  Second, the servient estate owner contended that the easement was only for use “by a single family in occupancy and their guests”.  The court concluded that any such restriction would be inconsistent with the appurtenant nature of the easement.  The easement was appurtenant to the entire parcel acquired by the grantee and, thus, when the parcel was divided into 40 to 60 parcel, the easement was appurtenant to each subdivided parcel.  Accordingly, the court held, “The [] conveyance does not contain a restriction that the easement granted is to be appurtenant to the dominant estate only while such estate remains in single possession, and none may be imposed by judicial declaration.”  Id. at 263.  Third, the servient estate owner urged that improvements to the easement area be limited “as those roads are presently maintained.”  Id.  The court concluded that such a restriction may be too limiting.  The court noted the general rule that “the owner of an easement may prepare, maintain, improve or repair the way in a manner and to an extent reasonably calculated to promote the purposes for which it was created. The owner may not, however, by such action, cause an undue burden upon the servient estate, nor an unwarranted interference with the independent rights of others who have a similar right of use.”  Id. at 263-4.  Thus, leveling and grading the existing road within the existing confines of the road was permitted.  However, different principles were concerned if the dominant estate holder wanted to expand the width of that road.  Thus, the court turned to the issue of how wide the easement was.  The terms of the easement did not specify the width of the easement.  Accordingly, the court held that if the easement does not specify a width, “the intention of the parties at the time of the grant, when there is evidence to indicate such intention, controls as to width.”  Id. at 264.    

 

In another case, the court held that an easement for the construction and maintenance of a “street 80 feet in width” did not permit the construction of a 40-foot street and two 20-foot drainage ditches along the sides of the street.  City of Reno v. Matley, 79 Nev. 49 (1963).  The drainage ditches were not permitted under the terms of the easement even though “[t]he high level of percolating and other waters ma[d]e drainage of the roadbed necessary and to do so efficiently the City planned and the construction company dug the ditch along and within the limits of the 80-foot right of way.”  Id. at 53.

 

Parol Evidence Rule.  As alluded to in the Cox decision discussed above, the parol evidence rule is applicable to easements.  Accordingly, “[e]xtrinsic evidence is not admissible for the purpose of interpreting clear and unambiguous terms. 78 Nev. at 261-262, 371 P.2d at 652. However, [w]hen the width [of the easement] is not specified, the conveying instrument must be construed in the light of the facts and circumstances existing at its date and affecting the property, the intention of the parties being the object of inquiry." 78 Nev. at 264, 371 P.2d at 654.”  Sievers v. Zenoff, 94 Nev. 53, 56 (1978) (internal quotation marks omitted).  Similarly, where an instrument provided only for a right “to drill a well and [have] the right of access thereto on and over the said premises”, the court looked to the facts and circumstances surrounding the grant to construe the terms of the easement and to determine where, how many, and under what circumstances wells could be drilled on the servient property.  Snow v. Pioneer Title Ins. Co., 84 Nev. 480 (1968).

 

            Construction Against the Drafter.  One principle of construction that is important in many contexts is the rule that “when a contract is ambiguous, it will be construed against the drafter”.  See Glenbrook Homeowner’s Assn. v. Glenbrook Co., 111 Nev. 909, 917 (1995) (quoting Dickenson v. State, Dept. of Wildlife, 110 Nev. 934, 937 (1994)).  That rule applies equally in the easement context.  Accordingly, it takes on an especial importance in the decision as to whether an easement should be granted or reserved, if both options are available.  (Although this rule is merely of construction and can be waived by the parties, it is, in my experience, rare to include a waiver of this rule in a deed, although less rare to include such a waiver in an easement.)  If the easement is granted, it will, in all likelihood be construed against its grantor under this rule and, thus, in order to avoid unintended and broad interpretations of a granted easement, careful attention must be paid to spelling out in the text of the easement all restrictions and limitations on its use.  See, e.g., Michelsen v. Harvey, 107 Nev. 859, 863 (1991) (“In Langworthy v. Coleman, 18 Nev. 440, 444, 5 P. 65, 67 (1884), we determined the intent of a grantor by ‘construing the deed most favorable [sic] to the grantee, and considering the character of the property, and all the circumstances surrounding the parties’”)  By contrast, a reserved easement will likely be construed much more narrowly, even if limitations and restrictions are not explicitly included in the reservation.  Of course, if it can be shown that the relevant portion of the easement was drafted by the other party, then this rule would be reversed.  See 14 Powell § 81A.05[3][b][i].  However, consider the unlikelihood of being able to offer proof of drafting sufficient to defeat the default rules if the dispute arises several years after the date of the easement.

 

b.     prescriptive easements

 

“The extent of a prescriptive easement is fixed by the use which created it.”  Keller v. Martini, 86 Nev. 492, 493 (1970).

 

c.     implied easements

 

The scope (the purposes to which it may be put and the extent to which it may be used) of an implied easement is fixed at the time of its creation.

 

VI.              Enforcement

a.     who may enforce

 

Appurtenant easements run to the benefit of all successors in title of the dominant estate and burden all successors in title to the servient estate.  That remains the case if either the dominant or the servient estate is later subdivided.  Thus, where the dominant estate is subdivided into multiple parcels, the owner of each such subdivided parcel will enjoy the benefits of the easement.  See Brooks v. Jensen, 87 Nev. 174, 176-7 (1971) (“There is nothing contained in that conveyance to suggest that the easement therein reserved was to be appurtenant to the dominant estate only while such estate remained in single possession. Absent such a restriction, those who succeed to possession of parts of the dominant tenement also succeed to the privilege of using the easement reserved for the benefit of the dominant tenement.”).  An express easement may further limit or expand the scope of those who may enforce an easement and may specify the procedures under which enforcement may be pursued.

 

b.     remedies available

 

An easement holder may protect its easement rights by self-help, an action for damages or an action for equitable relief.  4 Powell on Real Property, § 34.17 (2007).

 

The servient owner will also be entitled to relief if the scope of the easement is exceeded.  “The scope of an easement may be expanded beyond the terms of the original grant; however, the dominant owner may not unreasonably increase the burden on the servient estate.  . . .  What constitutes an undue burden depends upon the facts of a particular situation; thus, general conclusions are difficult to draw.  . . .  Generally, if the easement holder misuses the servitude, the servient estate owner may obtain an injunction restraining the overburden.  . . .  In some instances, damages or the extinguishment of an easement remedy the misuse.”  Breliant v. Preferred Equities Corp., 109 Nev. 842, 848 (1993).

 

“Any misuse of the land or deviation from the intended use of the land is a trespass for which the owner may seek relief.”  S.O.C, Inc., at 409.  However, mere evolution in the use of an easement “along with the normal change in the character of the dominant tenement” does not constitute the overburdening of an easement.  See Brooks, 87 Nev. at 178-9.

 

An express easement may expand (by, for example, adding specific self-help rights as discussed above) or contract the universe of potential remedies for a breach by either party of the easement agreement. 

 


EXHIBIT A

 

 

EASEMENT FOR COLLECTION OF SOLAR ENERGY

 

      NRS 111.370  Creation of easement by grant; signing, recording and contents of instrument creating easement.

      1.  An easement for collection of solar energy may be created by a grant from the owner of neighboring land to the owner of land on which equipment for the collection of solar energy has been or is planned to be installed.

      2.  The easement is an interest in real property.

      3.  The grant must be expressed in a written instrument, signed by the grantor. When acknowledged, the instrument must be recorded by the county recorder in the county where the burdened and benefited lands are situated.

      4.  The instrument must include a description of:

      (a) The burdened and benefited lands.

      (b) The location, size and periods of operation of the equipment to be used in collecting the solar energy.

      (c) The open area to be preserved for passage of direct solar radiation across the burdened land to the collecting equipment, by dimensions or bearings from the collecting equipment or by a statement that no obstructions which cast a shadow on the equipment during its periods of operation are allowed on the burdened land.

      (Added to NRS by 1979, 469)

 

      NRS 111.375  Vesting of easement; effect of transfer of land.

      1.  An easement for the collection of solar energy becomes vested in a grantee upon the recording of the grant.

      2.  The easement is appurtenant to the benefited land. The benefit of the easement passes with the benefited land and the burden of the easement passes with the burdened land upon any transfer, voluntary or involuntary, of the respective lands.

      (Added to NRS by 1979, 470)

 

      NRS 111.380  Termination, modification or extinguishment of easement.  An easement for the collection of solar energy:

      1.  Terminates upon the expiration of a period of limitation specified in the grant creating the easement.

      2.  Terminates upon recording of a release of the easement by the owner of the benefited land.

      3.  May be modified or extinguished by an order of a court based upon principles of equity, changes in conditions or abandonment.

      (Added to NRS by 1979, 470)

 


 

EASEMENTS FOR CONSERVATION

 

      NRS 111.390  General purpose.  The general purpose of NRS 111.390 to 111.440, inclusive, is to make uniform the law of those states which enact the Uniform Conservation Easement Act or provisions substantially similar to that act.

      (Added to NRS by 1983, 687)

 

      NRS 111.400  Scope.

      1.  NRS 111.390 to 111.440, inclusive, apply to any interest in real property created:

      (a) On or after July 1, 1983, which complies with those sections, whether designated as an easement for conservation or as a covenant, equitable servitude, restriction, easement or otherwise; or

      (b) Before July 1, 1983, if the interest would have been enforceable had it been created after July 1, 1983, except that the interest is not enforceable against a bona fide purchaser of the real property for value or the holder of an encumbrance on real property if:

             (1) The purchase or encumbrance of the real property was made after the easement for conservation was created but before July 1, 1983; and

             (2) The easement for conservation was not enforceable at the time of the purchase or encumbrance of the real property under other law of this State.

      2.  Those sections do not invalidate any interest in real property whether designated as an easement for conservation or preservation or as a covenant, equitable servitude, restriction, easement or otherwise, which is enforceable under other law of this State.

      (Added to NRS by 1983, 687)

 

      NRS 111.410  Definitions.  As used in NRS 111.390 to 111.440, inclusive, unless the context otherwise requires:

      1.  “Easement for conservation” means a nonpossessory interest of a holder in real property, which imposes limitations or affirmative obligations and:

      (a) Retains or protects natural, scenic or open-space values of real property;

      (b) Assures the availability of real property for agricultural, forest, recreational or open-space use;

      (c) Protects natural resources;

      (d) Maintains or enhances the quality of air or water; or

      (e) Preserves the historical, architectural, archeological or cultural aspects of real property.

      2.  “Holder” means:

      (a) A governmental body empowered to hold an interest in real property; or

      (b) A charitable corporation, charitable association or charitable trust which has among its powers or purposes to:

             (1) Retain or protect the natural, scenic or open-space values of real property;

             (2) Assure the availability of real property for agricultural, forest, recreational or open-space use;

             (3) Protect natural resources;

             (4) Maintain or enhance the quality of air or water; or

             (5) Preserve the historical, architectural, archeological or cultural aspects of real property.

      3.  “Right of enforcement by a third person” means a right provided in an easement for conservation to enforce any of the easement’s terms granted to a governmental body, charitable corporation, charitable association or charitable trust who is not a holder of the easement although qualified to be one.

      (Added to NRS by 1983, 687)

 

      NRS 111.420  Creation; recording; duration; effect on existing interest in real property.

      1.  Except as otherwise provided in NRS 111.390 to 111.440, inclusive, an easement for conservation may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as other easements.

      2.  No right or duty in favor of or against a holder and no right of enforcement in favor of a third person arises under an easement for conservation before it is accepted by the holder and the acceptance is recorded.

      3.  An easement for conservation is unlimited in duration unless:

      (a) The instrument creating it otherwise provides; or

      (b) A court orders that the easement be terminated or modified, according to subsection 2 of NRS 111.430.

      4.  An interest in real property existing at the time the easement for conservation is created is not impaired by the easement unless the owner of the interest is a party to the easement or consents to it.

      (Added to NRS by 1983, 688)

 

      NRS 111.430  Actions affecting easements for conservation.

      1.  An action affecting an easement for conservation may be brought by:

      (a) An owner of an interest in the real property burdened by the easement;

      (b) A holder of the easement;

      (c) A third person with a right of enforcement; or

      (d) A person authorized by other law.

      2.  NRS 111.390 to 111.440, inclusive, do not affect the power of a court to modify or terminate an easement for conservation in accordance with the principles of law and equity.

      (Added to NRS by 1983, 688)

 

      NRS 111.440  Validity.  An easement for conservation is valid even though:

      1.  It is not appurtenant to an interest in real property;

      2.  It can be or has been assigned to another holder;

      3.  It is not of a character that has been recognized traditionally at common law;

      4.  It imposes a negative burden;

      5.  It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder;

      6.  The benefit does not touch or concern real property; or

      7.  There is no privity of estate or of contract.

      (Added to NRS by 1983, 689)

 

 


EXHIBIT B

 

Example Easement Agreement

 

[See attached]


[DRAFTER’S  NOTE:  ALTERNATIVE OR OPTIONAL LANGUAGE IS BRACKETED IN THE TEXT BELOW]

 

When recorded, return to:

Kevin Goff, P.C.

3950 Howard Hughes Parkway

Ste 500

Las Vegas, Nevada  89_________

 

 

 

EASEMENT

 

            THIS EASEMENT (“Easement”) is granted and conveyed this ____ day of ____________, 200___, by _________________________________, [a _________________ corporation/limited liability company/limited partnership OR an individual OR husband and wife] ([collectively, ]“Fee Owner”), to_____________________________, [a _________________ corporation/limited liability company/limited partnership OR an individual OR husband and wife] ([collectively, ]“Easement Holder”).

 

            RECITALS:

 

            A.        Fee Owner owns the real property described on Exhibit A attached hereto (the “Servient Property”).

 

            B.         Easement Holder owns the real property described on Exhibit B attached hereto (the “Dominant Property”).  The Servient Property and Dominant Property are contiguous to each other.

 

            C.        Fee Owner has agreed to grant to Easement Holder the easements hereinafter set forth for: (i) construction, repair, maintenance and, as needed, replacement of an approximately twenty (20)-foot-wide concrete-paved road meeting the design and construction standards set forth on Exhibit D hereto  (the “Road”) over that portion of the Servient Property as shown on Exhibit C attached hereto (the “Primary Easement Area”); and (ii) access to and [exclusive] use of the Road.

 

AGREEMENTS:

 

            NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Fee Owner agrees as follows:

 

            1.         GRANT OF EASEMENT.

 

                        A.        Easement.  Fee Owner hereby grants to Easement Holder, for use by Easement Holder and Easement Holder’s tenants, licensees, invitees, employees, contractors, representatives, successors and assigns, a [perpetual OR SPECIFY TERM] [non-] exclusive easement under, over, across and upon the Primary Easement Area for purposes of:  (i) using the Road to provide access between ________________ and the Dominant Property; and (ii) constructing, repairing, maintaining and replacing the Road; and (iii) accessing, landscaping and maintaining the Easement Area.  [Fee Owner reserves [no OR the] right[s] to access [or OR and] use the Easement Area, and Easement Holder will [not] have the right to exclude [[all OR any] persons, including] Easement Holder from using the Easement Area.]  [ADD ANY LIMITATIONS ON SCOPE OF EASEMENT, SUCH AS A MAXIMUM DAILY TRAFFIC FLOW.]

 

                        B.         Temporary Construction Easement.  Fee Owner hereby grants to Easement Holder, for use by Easement Holder and its agents, employees and contractors, a temporary easement on the Servient Property (the “Temporary Construction Easement”) for general construction purposes relating to the initial construction or subsequent replacement of the Road.  The Temporary Construction Easement will be ten (10) feet in width and will lie on both sides of and adjacent to the Primary Easement Area.  The Temporary Construction Easement will commence upon the commencement of the construction or replacement, as applicable, of the Road and will expire upon the completion of the construction or replacement, as applicable, of the Road.  All such construction or replacement must be pursued in good faith and with reasonable diligence.   Without diminishing or in any manner altering the automatic nature of the expiration of the Temporary Construction Easement, each party agrees to sign, acknowledge and deliver to the other such additional documents as the other party may reasonable request to evidence the expiration of the Temporary Construction Easement.  Promptly following expiration of the Temporary Construction Easement, Easement Holder must remove all equipment and other property placed on the Servient Property and generally restore the surface of Fee Owner’s property to [substantially OR a condition that is the same or better than] the condition that existed prior to the construction activities[, to the extent reasonably practicable].  After the initial Temporary Construction Easement expires, no further Temporary Construction Easement may commence sooner than the twentieth (20th) anniversary of the expiration of the most recent prior Temporary Construction Easement.

 

            2.         CONDITION OF EASEMENT AREA.  It shall be Easement Holder’s sole responsibility, at its own expense, to keep and maintain the Easement Area in good condition and repair and in accordance with the standards set forth on Exhibit D.  All maintenance, repairs and, as needed, replacements to the Easement Area or any installation, equipment or facilities therein or thereabout shall be made by Easement Holder.  All such repairs and replacements shall be in quality and class equal to the original work or item [and shall be subject to Fee Owner’s prior reasonable approval, which approval Fee Owner shall not unreasonably withhold or delay].

 

3.         HAZARDOUS MATERIALS.  Easement Holder shall not permit or cause any party to bring any “hazardous material” (herein so-called and for purposes of this Agreement defined as such term is defined in or for purposes of any laws regulating or relating to health, safety, or environmental conditions on, under, or about the Easement Area or the environment) upon the Easement Area or transport, store, use, generate, manufacture, dispose, or release any hazardous material on or from the Easement Area. 

 

4.         INSURANCE AND LIABILITY MATTERS. 

 

A.        INSURANCE.  Easement Holder covenants and agrees that from and after the date of this Agreement, Easement Holder will carry and maintain, at its sole cost and expense, Commercial General Liability insurance (written on the then-current standard ISO form bearing that name, or a form providing broader coverage), which shall include property damage, bodily injury, and personal and advertising injury liability coverage, contractual liability coverage (including for personal and advertising injury) and independent contractors coverage, having a minimum limit of $3,000,000.00 per occurrence and in the annual aggregate.  [ALSO INCLUDE PROPERTY INSURANCE REQUIREMENTS AND A SUBROGATION WAIVER IF ANY DESTRUCTIBLE IMPROVEMENTS ARE TO BE CONSTRUCTED IN THE EASEMENT AREA.]  Such policy shall name Easement Holder as an insured and name Fee Owner, Fee Owner’s lenders and other parties with insurable interests as designated by Fee Owner as additional insureds.  Such policy must be written by an insurance company authorized to do business in Nevada and rated A-/VIII or better in the most current edition of Best’s Insurance Report.  Such policy shall be written as primary and not contributing with or in excess of the coverage, if any, which Fee Owner may carry.  Such policy must provide that Fee Owner and its designees will not be responsible for any premiums, despite being named additional insureds thereunder.  Such policy or certificate(s) of such policy in form and substance reasonably acceptable to Fee Owner (including, without limitation, the deletion of any non-reliance or “endeavor to” language, if applicable) are to be provided by Easement Holder to Fee Owner prior to Easement Holder’s first entry onto the Easement Area and at least annually thereafter or as requested by Fee Owner.  The coverage evidenced by the policy or certificate of insurance will be for a period of not less than one (1) year, and will provide that Fee Owner be given written notice thirty (30) days prior to the expiration, material alteration, cancellation, non-renewal or replacement of the existing policy.

 

B.         INDEMNITY.  Easement Holder shall defend (with counsel reasonably acceptable to Fee Owner), indemnify and save harmless Fee Owner and the agents, contractors and employees of Fee Owner (collectively, “Fee Owner Representatives”) from any legal action, damages, claims, demands, losses, penalties, proceedings, judgments, disbursements, assessments, liabilities, costs and expenses (including reasonable attorney and expert fees and expenses incurred in investigating, defending or prosecuting any litigation, claim or proceeding) (collectively, “Claims”) arising from or out of (i) any acts, failures, omissions or negligence of Easement Holder, its agents, employees, contractors, licensees, invitees, principals, representatives, officers, managers, members, shareholders, partners, or directors or any affiliates, successors or assigns of any of the foregoing (collectively, “Easement Holder Parties”) which occur in the Easement Area or upon the Servient Property; (ii) any occurrence within or upon the Easement Area or that results from Easement Holder’s use thereof or activities in connection therewith; (iii) any violation of or failure to comply with, or the alleged violation of or alleged failure to comply with any law, including any laws regulating hazardous materials; (iv) any liens or encumbrances arising out of any work performed or materials furnished by or for Easement Holder; or (v) transfer taxes, brokerage commissions, leasing commissions or increases in real estate taxes or assessments against the Dominant Property or the Fee Owner resulting from any transfer of the Easement Area and/or this Lease by Easement Holder.  THE FOREGOING INDEMNITIES WILL APPLY REGARDLESS OF THE NEGLIGENCE OR STRICT LIABILITY OF FEE OWNER OR ANY OF THE FEE OWNER REPRESENTATIVES OR ANYONE CLAIMING BY, THROUGH OR UNDER ANY OF THEM but will not apply to the extent of the gross negligence or intentional misconduct of Fee Owner or any of Fee Owner’s Representatives.

 

C.        WAIVERS.  To the fullest extent permitted by law, Easement Holder, on behalf of all Easement Holder Parties, knowingly and voluntarily waives all Claims against Fee Owner Representatives arising from the following: (i) any personal injury, bodily injury, or property damage occurring in or at the Easement Area; (ii) any loss of or damage to property of a Easement Holder Party located in the Easement Area by theft or otherwise; (iii) business interruption or loss of use of the Easement Area suffered by Easement Holder; or (iv) the negligent acts or omissions or the strict liability of Fee Owner or one or more Fee Owner Representatives.

 

5.                  RELOCATION. 

 

A.        RELOCATION OF EASEMENT AREA.  Fee Owner may require Easement Holder to relocate the Easement Area to any other portion of the Servient Property provided the relocated Easement Area continues to provide access between the Dominant Property and _____________.  Fee Owner shall notify Easement Holder of such relocation not less than ninety (90) days prior to the date thereof.  Fee Owner shall reconstruct on the relocated Easement Area improvements substantially similar in quality, style and design to those constructed on the original Easement Area in accordance with plans and specifications approved by Fee Owner and Easement Holder, which approval shall not be unreasonably withheld by either party.  As of the later of the date specified in Fee Owner’s notice to Easement Holder or ten (10) days after Fee Owner has notified Easement Holder that it has completed the improvements to be constructed by Fee Owner on the relocated Easement Area, Easement Holder shall surrender the original Easement Area, and shall move to the relocated Easement Area, and the relocated Easement Area shall thereafter be deemed the Easement Area hereunder as fully as if said relocated Easement Area were originally described herein as the Easement Area.  Easement Holder agrees that promptly, on demand, it shall execute an amendment to this Agreement designating the location of the relocated Easement Area.  In connection with any such relocation of the Easement Area, Fee Owner may limit or deny use of the Easement Area for a period not in excess of thirty (30) days.

 

                        B.         EASEMENT HOLDER’S RIGHT TO OBJECT.  Notwithstanding anything to the contrary in Section 5.A, if the area to which the Easement Area is to be relocated is not reasonably acceptable to Easement Holder and Fee Owner cannot or does not remedy Easement Holder’s written concerns, then Easement Holder may, as its sole and exclusive remedy therefor, terminate this Agreement at any time within thirty (30) days after Fee Owner’s notice to Easement Holder of Fee Owner’s intent to relocate the Easement Area and neither party shall have any further obligation hereunder, except with respect to matters that arose before such termination and except that in connection with such termination, Fee Owner shall pay to Easement Holder the reasonable costs paid by Easement Holder for Easement Holder’s non-removable improvements upon the Easement Area to the extent such costs are unamortized (based on straight line amortization over an assumed twenty (20)-year amortization period); provided, however, that such termination shall not be effective if within thirty (30) days after Easement Holder’s notice thereof, Fee Owner notifies Easement Holder of its election not to proceed with such relocation of the Easement Area.

 

6.         TAXES.  Easement Holder shall be responsible for payment of any type of tax, excise or assessment that is levied, assessed or imposed at any time by any governmental authority upon or against the Easement Area, the personal property or improvements placed, installed or constructed by Easement Holder upon the Easement Area, the use or occupancy of the Easement Area, any amounts payable by Easement Holder to Fee Owner, or otherwise with respect to the relationship created hereunder.  If any such tax, excise or assessment for the Easement Area or the improvements or other property located thereon is not separately stated in the applicable tax bill, Fee Owner may reasonably allocate such taxes as between the Easement Area and the remainder of the applicable tax parcel based on relative area or value, as applicable.  Easement Holder shall pay the full amount of such tax, excise or assessment directly to the appropriate governmental authority, unless the applicable law expressly imposes solely on Fee Owner the duty to pay or collect such tax, excise or assessment, in which case Easement Holder shall pay the full amount of such tax, excise or assessment to Fee Owner within thirty (30) days following receipt of Fee Owner’s billing therefor.  The provisions of this paragraph shall also apply to any tax, excise or assessment which may at any time replace or supplement any tax, excise or assessment described herein.

 

7.         COVENANTS RUNNING WITH THE LAND.  The easements hereby granted are perpetual (except that the Temporary Construction Easement will automatically expire as above provided), and the easements, restrictions and covenants herein contained “touch and concern” the land and will be easements, restrictions and covenants running with the land and will inure to the benefit of, and be binding upon, Fee Owner and Easement Holder and their respective heirs, successors and assigns, including without limitation all subsequent owners of the properties involved in this Easement and all persons claiming under them.

 

            8.         FEE OWNER’S REMEDIES.  Following any violation or breach of this Lease by Easement Holder, Fee Owner may, at its option, pursue any and all rights and remedies provided to Fee Owner at law, in equity or otherwise.  In addition to such rights and remedies, Fee Owner may, immediately, or at any time following such breach or violation, and without demand or notice and without waiving such breach or violation, perform such work or other obligation, or cause such work or other obligation to be performed, for the account of Easement Holder; and Easement Holder shall on demand pay to Fee Owner the cost of performing such work or other obligation plus fifteen percent (15%) thereof as administrative costs.  All of the foregoing rights and remedies of Fee Owner are cumulative and non-exclusive.

 

9.         ENFORCEMENT.  The easements, restrictions and covenants herein contained may be enforced by either Fee Owner or Easement Holder, and any violation thereof may be restrained or enforced by any court of competent jurisdiction and/or damages may be awarded for any violation; provided, however, that nothing herein may be construed as meaning damages are an adequate remedy where equitable relief is sought.

 

            10.       DISPUTE RESOLUTION.  The laws of the State of Nevada shall govern the validity, construction, performance and effect of this Easement.  Any legal suit, action or proceeding against Fee Owner or Easement Holder arising out of or relating to this Easement shall be instituted in any federal or state court in Clark County, Nevada, and each party waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, and each party hereby irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding.  FEE OWNER AND EASEMENT HOLDER WAIVE ANY RIGHT TO TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN FEE OWNER AND EASEMENT HOLDER ARISING OUT OF THIS EASEMENT OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.

 

11.       ATTORNEYS’ FEES; COSTS.  Should either Fee Owner or Easement Holder employ an attorney or attorneys to enforce any of the provisions of this Easement, or to protect its interest in any matter arising hereunder, or to recover damages for the breach hereof, the person not prevailing in any final judgment agrees to pay the other all reasonable costs, charges and expenses, including attorneys’ fees, expended or incurred in connection therewith, in addition to any and all other relief provided for by law or equity.

 

            12.       COUNTERPARTS.  This Easement may be signed in counterparts, each of which will be deemed an original, but all of which will constitute one and the same instrument.  The partially-signed signature page of any counterpart of this Easement may be attached to any other partially-signed counterpart of this Easement without impairing the legal effect of the signature(s) on such signature page.

 

            13.       ESTOPPEL CERTIFICATE.  Within thirty (30) days after either Fee Owner or Easement Holder has received a written request therefor from the other, the person receiving such request must sign and deliver to the other an estoppel certificate that (i) certifies that this Easement is unmodified and in full force and effect (or, if modified, states the nature of the modification and certifies that this Easement as so modified is in full force and effect), (ii) certifies the date of the expiration of the most recent Temporary Construction Easement, and (iii) acknowledges that, to the knowledge of the person so certifying, there are no uncured defaults hereunder on the part of the other person or specifying such defaults if the certifying person claims any.


 

            IN WITNESS WHEREOF, Fee Owner and Easement Holder have signed this Easement as of the date first set forth above.

 

                                                                                                                                               

                                                            Fee Owner

 

                                                                                                                                               

                                                            Easement Holder

 

 

STATE OF                               )

                                                )           ss.

County of                             )

 

            The foregoing instrument was acknowledged before me this ____ day of _____________, 200___, by ______________________[a _________________ corporation/limited liability company/limited partnership OR an individual OR husband and wife] [the _________________________ of _________________________ on behalf of such _________________________].

 

                                                                                                                                               

                                                                        Notary Public

 

My commission expires:

                                               

 

 

 

STATE OF                               )

                                                )           ss.

County of                             )

 

            The foregoing instrument was acknowledged before me this ____ day of _____________, 200___, by __________________________[a _________________ corporation/limited liability company/limited partnership OR an individual OR husband and wife] [the _________________________ of _________________________ on behalf of such _________________________].

 

                                                                                                                                               

                                                                        Notary Public

 

My commission expires:

                                               


EXHIBIT A

TO

EASEMENT

 

 

[legal description of Servient Property]

 

[to be attached]

 


EXHIBIT B

TO

EASEMENT

 

 

[legal description of Dominant Property]

 

[to be attached]

 


EXHIBIT C

TO

EASEMENT

 

 

Easement Area


EXHIBIT D

TO

EASEMENT

 

Construction, Repair and Replacement Standards

 

 

Easement Holder must construct, repair and, as needed, replace the Road in accordance with the following:

 

  1. Such standards as are required to be met at the time of the applicable construction, repair or replacement by the local jurisdiction within which the Servient Property is located as a condition to acceptance of a local, concrete-paved way into the applicable jurisdiction’s street system and such standards as are followed by the applicable jurisdiction in maintaining such ways.
  2. Such higher standard as may be required to construct and keep the Road in first-class order, condition and repair.
  3. The plans and specifications approved by Fee Owner prior to the date hereof prepared by _______________________, last revision date ______________.  Fee Owner’s review and/or approval of such plans and specifications is not a representation or warranty that the plans and specifications are accurate, sufficient for their intended purposes, compliant with any laws or of any other matter; any such review and/or approval is solely for the benefit of Fee Owner.
  4. [CONSIDER ADDING STANDARDS FOR ANY REQUIRED LANDSCAPING]