For as common as they are in rural areas, easements only seem to come up in conversation when property changes hands or a breach of etiquette gets folks riled up. Breaches sometimes happen because people honestly don’t know how to avoid getting wrong-footed with the neighbors. Life experience limited to neat grids of city streets does little to prepare a person for understanding the patchwork boundaries of rural real estate. They may remember some codger yelling, “You kids get off my lawn!” But out here, our codgers often don’t get the immediate satisfaction of face-to-face communication. Yelling at tire tracks doesn’t measure up to seeing that deer-in-headlights look of kids caught where they shouldn’t be. And it doesn’t do much to educate transgressors, which in most cases is more effective than yelling anyway. In that spirit, here are some things it’s handy to know about easements.
What’s an easement? An easement is an agreement that allows someone the privilege of specific, limited use on property owned by someone else. Owned by and someone else are key concepts. And I use privilege deliberately: Every state and province has variations on the legal language and parameters of rights conferred by easements. In general, the safe bet is to treat any easements as a privilege with specific, limited parameters. Written easements are recorded in land records. In implied easements, the actions of all parties suggest everyone’s intentions were clear but no one committed them to paper. In prescriptive easements, use without objection over time may confer some legal rights to continue doing so.
Access. An easement may exist because the owner of a “landlocked” property can only gain access by crossing someone else’s property, and that someone else has agreed to let them. This is common where one-time farms and homesteads were parceled out. Unlike city lots, the crazy-quilt boundaries of rural parcels often have more to do with topography and historic use than proximity to a road. Say, for example, one family member built a house in a wooded corner of the Back 40, and had to build a driveway that crossed a field owned by another family member. An informal agreement may have worked well enough for a generation or two. But then the interested parties move or die. Without a written easement in land records, the next owner(s) may have problems. In the absence of an easement recorded with the county Register of Deeds, a title company may not be able to provide assurance that the easement is enforceable and the new buyer of landlocked property has legal access. The new owner of property someone else is used to crossing may not be inclined to extend that courtesy (privilege). Since easements do not live forever, they may not have to. And that can lead to strained relationships between neighbors.
Types. Easements are not just for driveways to landlocked property. Utility easements allow access to private property for the purpose of building and maintaining electric power, telephone, internet, natural gas, water, wastewater, reclaimed water, and sewer services. Agricultural conservation easements may limit nonagricultural uses, protect grazing uses, or protect wetlands or other resources. Conservation easements may allow specific, limited use for things like trails or access to fishing spots, boat landings, or public land open for hunting, foraging, firewood gathering, and other activities.
Back pocket easements. The anticipation of future need may result in an easement that isn’t in use but exists nonetheless. When a friend sold a piece of property he kept a 66-foot easement along the edge to ensure access to another parcel – just in case it’s ever divided from the land by which he currently has access.
Handshake agreements. For years, a public-private handshake agreement allowed vehicular traffic to a fishing spot near me – but only for fishing. To learn the combination for the padlock on the cable that gated the drive, you basically had to prove to another fisherman that you were worthy of their trust. That informal arrangement worked until the land passed to other members of the family. They didn’t want fishermen or anyone else using that access. A conservation group paid to have the title researched and found no formal easement attached to the property. An uneasy truce is in effect: The fishermen grumble when the current landowner is slow to return the combination padlock to the gate at the start of fishing season. I suspect the current owners also grumble about fishermen. But for both, grumbling is cheaper than going to court to prove or oppose a pattern of use argument in prescriptive easement litigation.
Specific and limited. Here in northern Wisconsin, one of the best ways to make yourself unpopular is to stray off marked and groomed snowmobile trails. Those trail networks cross a lot of private property. Property owners grant easements that allow trail activities with the assumption that people using them keep moving along, engaging in that specific activity in that limited area. Those easements do not allow unfettered access to off-trail areas (which is properly called trespassing). Those who run ATVs or 4x4s on easements specifically granted for snowmobiles may be considered trespassers as well. Landowners are not obligated to accept damage to fields, tree plantings and drainage systems, harassment of wildlife and livestock, or other violations of boundaries and uses agreed to for the trail easement. Don’t blame them when they get fed up and withdraw from agreements, because you can safely assume it’s happened more than once.
Good faith. Easements rely on the good faith of all parties. When one or more perceive a breach of that faith, things can get messy. Last winter, for example, the Lac du Flambeau Tribe in northern Wisconsin erected barriers on four roads that cross tribal land. Right-of-way easements that allowed access expired about 10 years ago. Since then, the Tribe, the adjacent township and title companies have been unable to agree on specific parameters for a renewal agreement. When negotiations stalled, the tribal government erected barriers to prevent ingress and egress by property owners who use those roads. The Tribe kept the roads plowed for emergency vehicle access, and Tribal Police did welfare checks and picked up garbage from affected residents, who otherwise had to snowshoe or snowmobile across a frozen lake to skirt the disputed area. But people felt trapped in their homes. Additional properties may be impacted by more expiring easements on tribal land. Aside from, possibly, lawyers representing parties involved in the dispute, no one seems happy about the situation. But once people feel disrespected, “good faith” is hard to restore.
Wait, what? If people who bought homes after those easements expired got caught in this situation despite having title insurance they believed would guarantee access to their property, could it happen to you? Possibly. When purchasing rural property, you may in fact want an attorney to help you confirm existing easements and get new ones or renewals in writing. And be sure those easements cover not just ingress and egress but also utility line and pipe crossings, and building and maintaining a driveway (including culverts and other drainage features). I’ve heard there are easements that prevent new construction from blocking the view for existing homes (or future structures that might be built on a property). That sounds pretty fancy for my neck of the woods, but I’m sure it could happen somewhere.
Don’t assume. Where easements exist – on paper or otherwise – it can be expensive to act first and ask forgiveness later. For example, if you erect a fence or structure that impedes access on a utility easement, they’re not going to forgive you. They might give you a short grace period to remove it, but are just as likely to have it torn down and send you the bill.
Fact of life. Despite what I said earlier about privilege, don’t expect much deference to you as a rural property owner from crews working on utility easements. They’re not going to notify you in advance about their plans, consult you, give you choices, or accommodate your schedule so you can be present while they work on your property. Hollering at them to get off your lawn won’t help. If the work order states they must top trees under power lines, that’s what they do. If they trench through your wildflowers to lay fiber optic cable, at least you got fiber optic cable to your neighborhood – finally.
Donna Kallner writes from Langlade County in rural northern Wisconsin.
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