Easement 101
An easement involves the right of one person or entity to utilize the land of another person or entity for a specified purpose. Many easements are created as part of a larger agreement between property owners, such as an agreement to provide a pipeline or some other transmission line that will take advantage of the easement to freely pass through or under the land.
An easement designed to cross over or under a certain property can be the foundation of many commonly seen personal or commercial transactions. For instance , the right to build and maintain a roadway across certain property may be granted through an easement. A cell phone provider may be granted an easement to build and maintain a communication tower atop a building or piece of land. A power company may be given an easement to run power lines in an area. In each of the examples above, the individual or company obtaining the easement has the right to utilize the land of another for a specified purpose.
Categories of Easements under Oklahoma Law
Oklahoma recognizes multiple types of easements. Broadly categorized, they are prescriptive easements, express easements, and implied easements. Oklahoma also recognizes easements by necessity. Specific statutory requirements govern each type of easement.
Prescriptive Easement
The Oklahoma statute of limitations for adverse possession governs the establishment of a prescriptive easement. The primary element of a prescriptive easement is that the use of property is open, notorious, visible, and continuous for the statutory period of 15 years. Title to the property must not be registered under the Oklahoma Torrens System. Once established, the qualities associated with a prescriptive easement cannot be increased.
Express Easement
Express easements are usually created by written instrument. An express easement clearly defines the interest sought and how it is owned and/or used. Express easements may be tenements which are separate parcels owned by the same person, or tenements which are owned by different people. They do not require that one be landlocked. An easement in gross is a non-possessory interest granted by one party in another, such as a utility easement or an easement for access or use.
Implied Easement
Implied easements are recognized in the event a party sold a portion of a tract of land that would make the remaining tract landlocked without an easement. Implication of an easement occurs when its necessary for the reasonable use of the land as sold or conveyed. "Necessary" means necessary to the reasonable use of the property; the easement does not have to be absolutely necessary. Neither exclusive use nor exclusion of the servient estate are required; and neither is an intention of the original parties.
Easement by Necessity
To create an easement by necessity, a party must show a unity of title between the dominant and servient tenement. That is, the owner of the dominant tenement must once have owned both the tenement conveyed and the tenement to which it has become necessity. The division of title must also be accompanied by the creation of a servitude on the part of the grantor’s tenement which is so necessary to the owner’s enjoyment of the dominant tenement that it rises to the level of necessity as discussed above. An easement by necessity may only be established when the subject tenements are contiguous.
Essential Requirements for Easements in Oklahoma
Oklahoma law requires that easements be in writing in order to be enforceable. Okla. Stat. tit. 16, § 2; Pine Properties, Inc. v. Sechrest, 2006 OK CIV APP 42, ¶ 12, 132 P.3d 1031, 1034 (2006). An easement is not an interest in land, it is a right to use land in a specified manner. Johnson v. Crow, 2012 OK 44, ¶ 12, 276 P.3d 174, 178. Oklahoma courts have held that an easement should "explain itself." See, e.g., Peters v. Bruner, 1995 OK 125, 909 P.2d 82 (1995). Oklahoma’s Easement Act states that an easement must contain the "names of the parties grantor and grantee, the nature and extent of the easement . . . and the description of the real estate affected by the easement." Oklahoma Uniform At. § 1; See also Peters, 909 P.2d at 85. Nevertheless, "a grant of an easement may be construed from an instrument when such construction is necessary to give effect to the intentions of the parties." Estate of Langford v. Worthington, 380 P.2d 312, 314 (Okla. 1962). Case law adds to the statutory requirements of the Easement Act by requiring that the writing boundary description "contain enough data that, under its text, surveyors versed in the art can retrace the original boundaries with reasonable accuracy." Evenson v. Chieftan Exploration Co., 2003 OK CIV APP 111, ¶ 12, 89 P.3d 1099, 1102 (2003). A survey is necessary only if the easement is "not accurately or clearly described and located." Oklahoma’s Easement Act, however, does not mandate a survey. Rather, the Act indicates that "[a] description by provisions of the Ohio Coordinates and GRID would be a sufficient description of real estate for purposes of subsection A of this section." Okla. Stat. tit. 16, § 2. In addition to the elements required by statute, courts have held that an easement granted by implication must also meet certain requirements. Specifically, Oklahoma courts have ruled that an easement claimed by implication must be (1) created by reservation in a conveying deed, (2) necessary for the prior existing servient estate’s use and enjoyment, (3) reasonably ascertainable at the time of the grant, and (4) continuous, permanent and apparent on the premises. See, e.g., Harvey v. Holland, No. 102,281, ___ P.3d ___, 2010 WL 2610222, at *3 (Okla. Civ. App. June 25, 2010).
Rights and Duties of Those Who Hold Easements
Easements not only create rights, but they also impose upon the easement holder a duty to enjoy the easement in a reasonable manner. Whether that "duty" has been breached is ultimately a question of fact to be determined according to the circumstances of each individual case. The general duties of an easement owner or holder include the following: In 2011, the Oklahoma Supreme Court explained this idea of reasonableness well in its decision of In re Foreclosure of Tax Lien of Ottawa County Treasurer (Moran v. OTWS Development, LLC, et al.), 2011 OK 70, 257 P.3d 1095. In that case, the Court recited the standard for an easement’s expiration as follows: [A]ny material act which is inconsistent with the customary enjoyment of it constitutes a relinquishment of an easement, such as where the owner of the servient estate does something to the property to show that the easement is no longer desired. Lorman v. Sutter, 69 Wis. 2d 508, 230 N.W.2d 394, 397 (1975); 2 Thompson on Real Property § 337 (Thomas ed. 2003). Conversely, the Court notes that on the easement by itself an "easement owner’s rights to use the servient estate are limited to the extent reasonably necessary for the accomplishment of the purpose of the easement." Id. Thus, while the servient estate owner has certain rights to enjoy his or her property, those rights must be measured against the interests of the easement owner as to the same property. Id. It is entirely up to the court in a particular case to assess the relevant facts in determining whether an easement owner or holder has violated the limits or conditions of his or her right to use an easement. See, e.g., Barnum v. Cienega, 511 F.Supp 2d 1030, 1037 (N.D. Ca. 2006) (court denied easement holders request for a permanent injunction against servient estate owner for blocking portion of easement due to facts raising question of easement holder’s responsibility for the blockage) Ultimately the matter of an easement holder’s duty, as with all areas of the law, questions of fact must be determined by examining all the surrounding facts and circumstances. In other words, rights and responsibilities under Oklahoma easement laws can get messy, so as always do not hesitate to consult with legal counsel.
Easement Disputes and Litigation
Even though the subject matter of easements invokes perceived thoughts of stability, there can still be some uncertainty and controversy with respect to easement rights and obligations. Common examples include whether an easement is in writing and valid, the scope of an easement, consent to a variance of the easement, or interference with easement rights and the resulting damages.
One of the most complex issues often involves whether an easement is in writing. Oklahoma Statutes at 16 Okla. St. Ann. § 15 provide that an interest in real property created by an agreement would not be invalid because the agreement was not made in writing and an easement in fact created, subject to certain exceptions. Statutory exceptions to the above requirement include such issues as easements not created subsequent to July 1, 1976, existing easements, and fraudulent conduct.
It is common for easements to be voluntarily granted in writing. These agreements may involve highways, railroads, utilities and other service areas. This writing requirement does not apply between individuals who own properties adjacent to one another such as prescriptive easements. Conversely, easements created by prescription or implication do not qualify as an exception and need not only be in fact created, but also, of course, in writing.
The scope and extent of easements is commonly interpreted and litigated. At the outset, it is generally agreed that easements must be strictly limited to the scope defined in the grant, reservation or agreement. The rights of both the servient estate and dominant estate are determined by the plain language contained in the agreement. A common case example is the granting of an easement with reference to a plat. Such language is specifically interpreted as limiting the easement to only the area dedicated in the plat, nothing more. See Custer v. Scott, 1943 OK 285, 131 P.2d 194, 1943 OK "An easement or right-of-way is the right to use another’s land for a specific purpose. "The right, as granted or reserved, must be strictly limited to that which is necessary for the beneficial enjoyment of the estate to which it is annexed." Samara v. Walsh & Sons Constr., Inc., 2009 OK 31, 215 P.3d 114, 2009 OK 31.
Oklahoma Case Law also prohibits the variance from the terms of the grant, unless consent is obtained from the dominant estate owner. Examples of consent may include the addition of more homes for access to a recreational lake parcel than those in close proximity to the lakeshore. This issue involves not only the burden on the servient estate by construction costs, but also the impact on the dominant estate. To preserve value, the dominant estate’s specific assistance may be required, particularly for access or construction. Under these circumstances, alternative resolutions may be sought with the dominant estate’s consent.
Oklahoma has a well-established body of law protecting monolithic highways and railroads and their uninterrupted utility in state. These rules are strictly enforced when challenged. Current law exists with respect to utility capacity and its limitation to the designated service area.
Also common are the cases involving the opposition or outright prevention of the continued existence of easements. The burden of proof is heavily weighted upon the party opposing an easement. See Walsh v. Walsh, 1993 OK 135, 861 P.2d 311, 1993 OK.
In order to prevent easement disputes, careful diligence is required with respect to the original grant. Additionally, parties considering a construction or increase in easement access should reconsider and carefully review the uses of the grant with the owner of the dominant estate to ensure adequate levels of endorsement, consultation and consent.
Changing or Ending an Easement
The law allows both private easements and conservation easements to be modified or terminated under certain circumstances. To terminate or extinguish an easement is to put an end to it. The 1993 Oklahoma statute governing private easements is similar to the rule for "quitclaim" or "release" in the common law.
Common law listed several ways in which easements could be terminated. These include merger, expiration, estoppel and other grounds (e.g., adverse possession, abandonment). Although all of these are technical rules frequently encountered in court cases, the recent Oklahoma statute simply refers to "cancellation" of the easement.
A third way of terminating a private easement is abandonment. A common misconception is that simply failing to use an existing easement will in and of itself terminate it. That is not true. To abandon an easement in Oklahoma, more is required than the non-use. There must be some affirmative and intentional act by the owner of the servient estate that clearly shows an intention to abandon the easement. Mere non-use of an easement does not cause its termination.
As to the modification of private easements, the statute lists seven ways in which they may be modified: As to whether a private easement may be modified, the statute says that every easement created may be modified in any of these seven fashions by "the voluntary act of the parties . " This does not mean that the easement can be revoked altogether. In other words, the parties cannot agree to revoke an easement. The statutory phrase "voluntary act of the parties" allows a modification that limits the scope of the easement, such as changing the length of time for which the easement is to run, or adjusting the location of the easement. Other changes to the nature of the easement, such as converting it to a railroad easement, would require compensation and would have to be done on a statutory basis.
Conservation easements also may be modified, but only if the federal tax code from which the income tax deduction arises allows modification. As long as there is a federal income tax deduction, the state easement statute allows a modification or a termination consistent with that federal law.
Following the 1993 Oklahoma revision of its easement laws, there are distinct differences between the conservation easement statute and the private easement statute. It is important that the language used to create an easement be carefully examined by an attorney who is familiar with both sets of rules.
How Easements Affect Property Valuation
Easements can significantly impact property value in Oklahoma. The value of an easement, whether to the grantor or to the grantee, will very often be obvious immediately. For example, a utility easement is generally will certainly add value to the property (or at least marketability) of the utility company who needs access to the minerals below.
On the other hand, sometimes the presence of an easement is an albatross. For instance, a road easement across a person’s property may bring them significant loss in value, especially if it is not reciprocal (that is, if the person cannot use the other side). This can happen if the landlocked parcel does not touch other owned property that can be used as a gateway onto the road. In an ideal situation, the owner will also have a parking lot, driveway, and often even a building on the easement.
But the simplest measure of the easement’s value is the marketability – does it enhance the property’s value? Will it be a liability when that person looks to sell the property in the future?
Although zoning law will limit what development can be done with the property, it will not limit how much it is worth. What this means is that any restrictions can seem irrelevant as an investor can charge whatever price they want. So in these cases, it’s almost always the second half that will really impact value.
It is also important to note some restrictions are not designed to increase the value of a property. For example, a 30-foot buffer zone along the banks of a river will help to protect wildlife. The property on the other side of the river will likely increase in value because of the quietness the buffer zone affords.
So how will the value be affected in the real estate market? If an easement increases property’s market value, it will often be helpful in resolving any property disputes. Any easements that are known will be factored into the asking price. If unknown, it will likely cost the new owner a substantial amount of money to clear it up. For instance, if the easement is underground and the owner did not know about it at the time of the sale, the cost of attempting to locate the easement will be handed down to them.
Helpful Information for Property Owners
Far too often an Oklahoma property owner will be served with a complaint that an adjoining landowner is claiming an easement across their property. Sometimes the property owner has no idea how their neighbor could possibly have access across their property. Often the successor to the property owner inherited the property without knowing of the burden created by the easement. In simple terms a property owner should be aware that a full investigation of the possibility of easements on their property is a necessity. The most important step is locating an attorney to review the prior chains of title to determine title matters and restrictions, including easements, are not present. Be aware that Oklahoma is a notice state, meaning that if the property owner has been placed on notice of the easement, it does not matter that they have not yet found the easement in the chain of title. In short, if the claimant has recorded notice of the easement in either the appropriate County Clerk’s Office or County Clerk’s Office, this may be sufficient to place the property owner on notice even if there is no reference in the chain of title. Be aware that while the burden requiring the execution of an easement may have been extinguished, the easement may once still exist with the burden on the property owner to find the easement and file a quiet title action to extinguish the existing claim. If there is no basis for the easement other than the fact that the claimant uses the easement and you have been placed on notice, the best course of action is to review the cause of action filed against your property and confer with your attorney regarding the statute of limitation where the easement is located. In Oklahoma, the statute of limitation for recovery of easement is twenty (20) years as set forth in Okla. Stat. tit. 12 § 93 (9). This means that in many cases, the adverse claimant must prove that they have been using the easement for the statutory period of time in order to recover as a matter of law. In Oklahoma, the statutory time period to recover lost compensation for the use of your own land is five (5) years set forth in Okla. Stat. tit. 12 §§ 93 (5), 940. In many circumstances it would be wise to confer with counsel concerning whether a claim for trespass should be pursued against the adjoining landowner and whether a cause of action to quiet title may be beneficial. Occasionally, the adjoining landowner may attempt to have you enter into negotiations for the expeditious execution of a corrective easement over your property. In such circumstances, an appraisal may be necessary to understand the market value of the easement and determine the best outcome for the client. While the best possible outcome is to accomplish your goal of ownership of your property without the burden of an easement, on certain occasions it may be beneficial to obtain compensation for the easement over a longterm basis if the easement only extends to your property. In more limited circumstances, sometimes the easement may be utilized as an opportunity to install electric power lines or utilize a portion of the land for other public utilities that would compensate another party on the basis of fair market value of the easement.
Wrap-up
In conclusion, an understanding of how easement laws work in Oklahoma and their limitations can be extremely beneficial to the property owner. These laws are merely rules and are only as good as the ability of an individual or the court to make the property owner whole if the law is broken . By knowing the law, you may be able to prevent abuse of easements or be able to reduce your legal costs by knowing the law before retaining an attorney. While other states may have different rules and exceptions surrounding easement law, in Oklahoma easements can be very difficult to delineate and even more difficult to enforce.
