Law of Easements CLE
I. Basics of Easement Law
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.
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.
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.
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
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
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[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
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
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.
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
(2) apparent and continuous use; and
(3) the easement must be necessary to the proper or reasonable enjoyment of the dominant tenement.”
v. Nash, 109
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
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
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
In Breliant v. Preferred Equities Corp.,
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.
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,
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.”
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
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
interruptions in access over a prescriptive easement due to weather and
alterations are not sufficient to negate the element of continuity.
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
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,
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
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
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
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.
Under the doctrine of merger, an easement
may be extinguished by common ownership of the dominant and servient
estates. Breliant, 112
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.
“An easement once established . . . is
presumed to continue unless there is a manifest showing of an intent to abandon
it.” Jensen v. Brooks, 88
f. transfer of title in the servient estate to BFP without notice
This topic is discussed above in Section III(h).
The easement may be extinguished by estoppel by satisfying the same requirements applicable to the creation of an easement by estoppel.
“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
“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,
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
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
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
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
b. prescriptive easements
“The extent of a prescriptive easement is
fixed by the use which created it.” Keller
v. Martini, 86
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.
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.
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.,
“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.
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.
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
(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)
Example Easement Agreement
[DRAFTER’S NOTE: ALTERNATIVE OR OPTIONAL LANGUAGE IS BRACKETED IN THE TEXT BELOW]
When recorded, return to:
Kevin Goff, P.C.
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”).
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.
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
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.
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.
RESOLUTION. The laws of the State of
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.
STATE OF )
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 _________________________].
My commission expires:
STATE OF )
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 _________________________].
My commission expires:
[legal description of Servient Property]
[to be attached]
[legal description of Dominant Property]
[to be attached]
Construction, Repair and Replacement Standards
Easement Holder must construct, repair and, as needed, replace the Road in accordance with the following: