2Point, Inc.

Disputes over access are increasingly common for property owners, and most recent court disputes involving real estate include issues relating to easements or other “non-possessory” rights to land. Litigation between private owners and utility corporations are on the rise, and driveway and road easements often are subject to differing interpretations due to the poor choice of original language in the controlling documents.

 

Easement research is difficult for many reasons. Some easements or rights-of-way may be based on a handshake decades or centuries ago. Proving the particulars of these informal agreements can be problematic and may depend on anecdotal evidence. Only in recent years have standards for access become sufficiently stringent to make written conveyances the norm.

 

Even where written documents exist, they often fail to adequately define the location and width of the right. Language may indicate that the right will follow some existing road or simply allow the subsequent construction of the road to control the location. Many early utility easements describe the corporations’ right to install structures over a given tract without any limitation on the location of the poles and lines.

 

Utility easements that fail to define the location are sometimes characterized as “blanket easements,” but courts nationwide agree that subsequent construction of utility structures by the company and acquiescence by the landowner serves to fix the location and extent of the right as if it was written into the document. This requires extra vigilance on the part of the surveyor.

 

Equally problematic are those easements described in the public record that may no longer exist. Reliance on a documented easement can be risky if both dominant and servient estates were purchased by one individual after the easement was created.

 

Because of the sporadic written record and the real need for access to existing parcels, courts have developed an extensive list of mechanisms that may be used to prove a right.

 

Other rights exist that may resemble easements and are often confused with them, such as restrictive covenants, flowing surface water, and rights associated with wharfs and piers for waterfront properties. These problems are resolved using different principles from those applied to easements.