Understanding Easements

You may never have heard the term “easement” before you received your condemnation notice. We are going to look at all the kinds of easements the government might be seeking from you, what your rights are, and what to look out for. When you look at each type of easement, consider – what will this do to my property and how much should I be paid for it? Your primary focus should always be the compensation.

An easement is the right to use land belonging to someone else. In eminent domain, that means it is the government’s right to use your property. You will sign an agreement with the condemning agency that will detail the terms of the easement. This agreement is a legally binding contract, so you should be very careful before you sign it lest you find yourself being sued for breaching the contract.

Often once the government has condemned your property, they may grant the right of use to a private utility company like Duke Power. This means that you still own the property, but the government or utility company as the right to come onto your property to alter or service that utility. An easement agreement also restricts you from doing anything that would damage the easement or complicate their use of the easement. For example, you can’t cut down the telephone pole or put a fence blocking the road.

An easement also carries the right of the government or utility to enter your property to access the easement. This ability of the state to come onto your property is referred to as a right of ingress and egress. You may want to negotiate when and where the easement holder can access the easement in your contract.

How Long Does an Easement Last?

Easements can be temporary or permanent. Most easements for utilities or roads will be permanent. A temporary easement is usually granted when the government is not taking your property permanently, but they need it temporarily for part of a larger construction project. However, sometimes a condemnor can do permanent damage while temporarily using an easement.

Permanent easements occur when the government wants to use a strip of your land for a particular purpose forever. Permanent easements come in the form of utilities, drainage, and slope and grading. There are also aerial easements which are permanent in nature. These are still usually under Utility Easements but may be listed as “Aerial Utility Easements” instead of “Permanent Utility Easements”.

Utility Easements

Utility easements are by far the most common type of permanent easement taking. The condemnation may indicate that the taking is simply for “power” or “phone” without any other information. The taking may say it is to erect wooden power poles and power lines. But the thing about a permanent easement is that once the government or utility company has it, it, they can alter their use later on. What started out as a single line of poles may turn into the massive 4-line power towers, and you won’t be able to stop it.

When you are reading your easement agreement, make sure to look for any language that would indicate that the utility company has the right to come in and do more at a later time. While you might not be able to stop it, you might be able to demand more compensation for the easement if the utility is going to devalue your land more than what is expected by the condemnor.

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Drainage Easements

No one wants to live in a community where water doesn’t drain properly. But no one wants to be the person who has their property dug up to ensure that drainage. Permanent drainage easements usually come in the form of digging new ditches or trenches, damming up small streams, as well as creating or draining ponds.

Just as with utility easements, you want to be sure you know what is going to be done to your property in the short term and the long term. What if the addition of a water retention pond on your property makes it more susceptible to flooding? What if a ditch makes it much harder for customers to access your business? Again, you won’t be able to stop the easement, but you want to be sure you are fairly compensated for it.

Slope and Grading Easements

If the government obtains a permanent slope easement on your property, they have the right to come in an adjust the elevation of declination of that part of your property. This might seem mundane until the government wants to elevate part of your front yard by eight feet to construct a new highway. Suddenly, your house is in shadow, and your heating bill has doubled. You may also have to deal with water run-off from the road.

Construction Easements

Construction easements are the lone temporary easement we want to discuss here. Your property will only be temporarily taken as it is within the construction zone of a new road, highway or railroad, but once the project is done, your property will be returned to you.

But temporary is a relative term. Road projects in North Carolina can take decades to complete, and if part of your land is under an easement for construction, you could be dealing with mud and heavy equipment for years.

There is also the major concern of what state your property will be in when it is returned to you. Think of what could happen to your yard with a two-ton bulldozer parked on it for years. The property in easement could be permanently damaged from a temporary use. What if an earthmover is parked in front of your business and customers can no longer even see it from the road? Remember, business losses are not part of the compensation for takings! Making sure the easement agreement justly compensates you is the key focus.