What’s an Easement?
A basic definition for an easement is a right of use over another person’s real estate, pursuant to the terms of the grant of the easement or easement application. An easement may be reserved in favor of someone selling property or may be granted to some other party. The parcel of land with the easement is referred to as the "servient estate" because it is subject to the right of use to another. The land that benefits from the easement is called the "dominant estate" because it is the subject of the right of use .
Essentially, the owner of the servient estate must permit the dominant estate owner to enter and use a portion of the servient estate and perform some act in relation to the dominant estate. In addition to the right of entry and use of the affected portion of the servient estate, the grantor of the easement may include specific requirement for the maintenance of the easement by the dominant estate owner, as well as specifying the allowed uses of the easement (e.g., easement for ingress and egress, easement for water or drainage, etc.).
Different Types of Easements in Tennessee
Tennessee recognizes several different types of easements that can be created and sustained in both rural and urban areas. The most prevalent are easements made in writing, but there are also several different types of oral easements.
Express Easements
Easements that are made in writing, or have been acquired expressly by grant from the grantor (or seller), are the most common form of easement. Express easements in writing are generally superior to all other types of easement. Express easements have three main types:
- Grantor vs. Grantee Easements – Generally, the grantor of an express easement will get a signed easement deed from the grantee accepting the easement in full. This is the most common type of easement deed.
- Covenants to Run with the Land – An easement that is implied to stay with the property forever, even when it is sold to a third-party purchaser.
- Easement by Deed – An easement that has been granted to the grantee of the easement by an easement deed.
Implied Easements
An implied easement is an easement created by law – it is an easement that is inferred from the circumstances, rather than being granted by the owner of the property. A private property owner may use and enjoy property that reasonably appears to be owned by the owner. The use may be extended to a surrounding area or adjoining property. If that property has been used in that way for more than 20 years, that use will be considered as if it were an easement.
Prescriptive Easements
Some easements are acquired from prescription, meaning longer use of the property than normal use will be considered an easement. For example, if a person uses a path across another’s property every day for more than seven years, the adverse possession or prescriptive easement will have been established and will continue after the passage of time.
Easement by Necessity
An easement by necessity is a type of easement that is for the benefit of another property – in other words, to reach that property.
How Easements are Established in Tennessee
Easements come into being in a variety of ways. They may be implied, created through necessity, or created through statute. Some easements must be in writing, and some can be valid without any writing at all.
For purposes of performing the title examination on an easement, it will be helpful to you to focus on the following two types of easements:
(1) Easements which must be in writing to be enforceable.
(2) Easements which do not need to be in writing to be enforceable.
As a general rule, easements required by law to be in writing, must be created in a document to which the owner of the servient estate is a party, because there must be an execution by the grantor and attestation by a witnesses. Therefore, if you are searching for an easement, be on the lookout for the conveyance that creates the easement because it must be conveyed from the owner of the servient estate. If it is an easement by express reservation it must be reserved in the document that conveys the servient estate.
Exceptions
There are exceptions to the above requirement:
- (1) Easements by implication or necessity.
- (2) Easements acquired through prescription.
- (3) Ways of necessity.
- (4) Lost Grant.
If the easement was by express reservation, you should search for the conveyance that created the easement. The explanation of "implied grants" below will help you understand the key rules for testamentary grants and the rules for implied easements. A key question to ask yourself when dealing with easements is whether the easement should be deleted from the servient estate’s chain of title.
30 Year Presumption
Judge W. Vance wrote in the case of Sullivan v. Tugman, 167 Tenn. 472, 71 S.W.2d 675 (1934), 259 S.W.2d 312 (1953):
Language in a deed or contract may be so clear, explicit, and decisive that there is nothing on the face thereof to indicate the slightest ambiguity, or to suggest that something in addition to such language was intended or will reasonably be presumed. And where the intrinsic meaning of the language used is clear, reference to extrinsic circumstances cannot be made in order to overthrow or to vary it. If the intention of the parties as gathered from the face of the deed is so plain and unmistakable that a particular intention is conclusively determined, extraneous evidence can not be admitted to control or to add to, or detract from, that particular intent.
Even though sometimes the courts may need to refer to extrinsic evidence, if the language in the easement agreement is clear, explicit and decisive, it is clear that the easement will be enforceable without regard to whether the servient estate has agreed or does not agree.
Easement Holder’s Rights and Duties
The rights and responsibilities of easement holders in Tennessee are fundamental to understanding these legal concepts. Like the grantor, the holder of the easement is subject to certain limitations. When you secure an easement, you must only exercise the rights provided for in the easement. For example, if you have a prescriptive easement, you are limited to the purpose for which the easement was established. If you use that easement beyond what you originally established, you may be liable to the property owner for damages and possibly even lose the easement.
Easement Holders and Specific Repairs
Though the landowner is responsible for maintaining property subject to an easement, the holder of the easement has an obligation to repair property damaged during the exercise of rights. For example, if the use of a public road causes the road to erode or become uneven due to water runoff, the owner of the easement is required to correct the problem. Such obligations may be enumerated in the easement agreement, or they may be implied by law under state law.
Successive Easement Holders
The rights and liabilities of easement holders are not limited to one holder. The rights of the original holder of the easement transfer to subsequent parties. If O grants an easement to A, who sells to B, A is not liable to B for injuries sustained when C uses the easement. Conversely, all liabilities transfer from A to B. Assignees become responsible for any liabilities imposed by the express or implied terms of the easement and by applicable Tennessee or local statutes.
Liabilities for Nonuse and Termination of Easements if use ceases
Easements can be extinguished if use ceases for a long enough period of time. If the holder does not exercise the right to the easement, it may be terminated if nonuse exceeds 20 years. Therefore, the holder of an easement faces liability for any neglect of the property or loss in value if use ceases for 20 years. The statute of limitations on adverse possession may also apply here. For example, if A holds an easement to cross B’s land, his failure to cross B’s property without permission for 20 consecutive years extinguishes the easement upon expiration of the statutory period.
Liability for Self-Help
Tennessee easement holders could also face liability if they interfere with the owner’s use of the easement. For example, if a private road easement holder begins to put up fences blocking the access road, the easement holder could face litigation for nuisance and trespass suits. Conversely, if the holder of a prescriptive easement fails to assert his rights against a trespasser, the prescriptive rights may not attach due to the failing plaintiff’s continuous and hostile occupation of the disputed property.
Public policy exceptions for easements
The holder of an easement may be required to comply with any local ordinances and codes for the maintenance of the easement. A legal easement for a road may be valid for one entity but may require additional approvals by local authorities.
Addressing Easement Issues
Disputes arising from the use and exercise of easements are not uncommon in Tennessee. Such conflicts can occur between the owner of the servient estate and the owner of the dominant estate, or between cotenants who often share the same dominant estate. Sometimes the parties are able to work through the disagreement without having to go to court, but at other times the matter cannot be resolved without judicial intervention.
A dispute concerning an easement where the ownership interest is divided among several owners is known as a partition suit, and is filed in the Chancery Court. The action is brought under TCA § 29-27-101, et seq., and requests court approval for the partition of property between parties containing a divided ownership interest. If the court finds that partition would be advantageous to all parties , it will appoint one or more commissioners to actually accomplish the division. Commissioners so appointed have the duty to make a full and fair partition of the property into distinct and equal shares based upon the portion of the property owned by each party.
With respect to easement agreements, disputes are also frequently related to scope. Reference to the recorded document is the best way to resolve this type of conflict, but an easement may also become outdated as a result of technology change. This sometimes results in disputes over whether an easement may actually be used for a new purpose. The consensus of the Tennessee Supreme Court is that the easement may be so used, provided there is no intent to limit its use in the recorded document.
Amending or Ending Easements
In certain circumstances, the parties to an easement may wish to modify its terms by agreement. The deed creating the easement—also known as the grantor or servient estate—may set forth the procedure for modification. Tennessee courts will enforce these provisions as written assuming they are not inconsistent with law or public policy. Modification is also permissible by agreement of the parties. However, such an agreement must comply with the Statute of Frauds, which requires certain conveyances of land, including easement agreements in Tennessee, to be signed and witnessed in order to be enforceable. An easement may also be terminated under certain circumstances. If the parties had a specific duration in mind when creating the easement, upon the expiration of that period the easement will terminate. After a reasonable time has passed, a prescriptive easement may terminate if the owner of the servient estate exercises his or her right to exclude by obstructing passage through the easement. An easement may also be terminated if the parties agree that it should be extinguished, or if the easement is impossible to perform. In addition, if the dominant estate ends, the easement is extinguished. A trial court in Davidson County recently considered whether the dominant estate should have been extinguished where it was severed from the servient estate. McKinney v. Leadership Academy, Inc., No. 3:17-CV-00835 (M.D. Tenn. June 18, 2018). In that case, the court found that although the easement continued as to the remaining parcel, it had been extinguished as to the severed parcel after the sale of the dominant estate because the easement was not reasonably necessary for the enjoyment of the dominant estate, and the existing use interfered with the use of the servient estate for more profitable endeavors.
Recent Developments in Tennessee Easement Law
In recent years, there have been some key developments in Tennessee easement laws that both property owners and easement holders should know. One such case, Smith v. Smith, involved the creation and termination of easements by necessity. In its opinion, the Tennessee Court of Appeals overturned a lower court ruling that had terminated an easement created by necessity due to changes in ownership of the dominant and servient estates.
The Court found that in order to terminate an easement by necessity , there must have been unity of the owner of both the servient estate and the dominant estate. Other cases prior to Smith stated that there just needed to not be any incidental use, which is contrary to this new decision. This highlights the importance of having good title opinions before purchasing land so that you do not purchase land which is subject to easement use.