Brief about easement laws
An easement is a non-possessory interest in land created by express or implied grant or reservation, prescription, or operation of law. See 15 O.S. § 1. In simpler terms, it is a right to use the property of another for a specific purpose. For instance, a utility company may hold an easement on a homeowner’s property to install and maintain power lines.
Easements can arise in a number of ways. They can be established by express grants or reservations in deeds, by operation of law, in accordance with public statutes, or by prescription. As long as one person has an interest in land that is subject to an interest or restriction held by another, there may be an easement.
The primary reason easements are important in Oklahoma is they can give exclusive rights to a property owner to use another’s property in a certain way. This means they can be an exclusive right to hunt a landowner’s property , or it may prevent a landowner from building on an area of their property because another holds an exclusive right to build in that area. Just as these examples suggest, they can have a significant impact on how a landowner can use his or her property, as well as impact their rights to use the property.
This blog will be a discussion of the common issues landowners may face regarding easements. Issues such as the creation of easements, easements by prescription, eminent domain, and extinguishment of easements will be discussed. This blog will also discuss some of the recent case law relating to easement law, so landowners can gain a better understanding of the impact easements have on their property.
Categories of easements in Oklahoma
There are multiple types of easements, some of which are more commonly used in Oklahoma than others. These include prescriptive easements, implied prescriptive easements, express easements, prescriptive easement by necessity, implied easements of necessity, and implied easements of convenience. Each of these easement types has its own specific legal requirements and characteristics.
The most common type of easement in Oklahoma is the prescriptive easement. This type of easement is created when a landowner openly and continuously uses a portion of another landowner’s property for at least 15 years without the landowner’s permission. In simpler terms, if you use someone else’s property for 15 years without their permission, you may be able to obtain a prescriptive easement.
Implied Prescriptive Easement "is one which arises from the prescriptive use . . . and is coextensive with the extent of the use so established." Two specific requirements must be met for an implied easement to exist. First, there must be an existing servitude; and second, the parties intended the way to continue. Intent to continue the easement cannot be established by words only. Instead, the intent must be gathered from the conduct of the parties.
Express easements are those easements that are clearly stated and written out in a deed like document and properly recorded. The process to create an express easement is simple—the original grantor must expressly convey or reserve the easement to or from the grantor. An example of an express easement would be if I want my friend to have the ability to walk across the corner of my property to access her driveway, I could create an express easement for her.
Prescriptive easements by necessity are created when a landowner’s property is completely surrounded by a neighboring property owner’s land and therefore, to have access to a public road, there is no "practical route to the nearest public road…without going upon the other’s [property]." For example, if the only way for you to reach your driveway is to cross your neighbor’s property, then you may be able to assert a prescriptive easement by necessity.
Implied easements of necessity is an "Exception to the Doctrine of Lost Grant" and is usually applied when the adjoining land was under one ownership, was divided, and the dominant tenement is now deprived of its means of access or egress to a road or highway.
Implied easements of convenience arise when a landowner sells a part of his land and the land that is sold "has no access to or egress from a road or highway except by passing over the part retained… unless an easement is reserved especially for the grantor."
How to establish easements
Easements can be created in numerous different ways. The most common way to create an easement is by deed, which is the primary topic of this section of easement law.
However, certain easements are more difficult to create than others and are subject to particular requirements. For instance, the requirements for an easement by deed are different from the requirements for an easement by necessity. The requirements for implied easements are different from both easements by necessity and easements by deed. Likewise, no particular formality is required when an easement is created as a remedy.
In some cases, an easement may be created by a combination of rules. Usually, if a rule that prescribes a way of creating an easement is violated, the rule that defines the effect of the method of creation is applicable. Hence, if the only defect in the method of creation of an easement is the fact that it was created by written instrument when an oral easement was all that was required, the easement may be only voidable but not void. However, if the only defect in the method of creation of an easement is that an oral easement was created when a written one was required then the easement is void.
Most easements in Oklahoma are created by deed. Title 16 Oklahoma Statutes section 1 states, "No estate or interest in lands (other than of chattels at the election of the party) shall be capable of being conveyed or assigned unless by act or operation of law." Amending or creating an easement by deed is a nearly wholly statutory matter and therefore must be strictly interpreted. There are two statutes for creating an easement by deed: "An easement may be created by grant, by reservation or by prescription, and then only to the extent and subject to the requirements hereinafter prescribed." Okla. Stat. tit. 16, §§ 2-20. An easement created by grant, reservation or prescription must have reasonably definite bounds so that an appropriation may be understood with sufficient certainty that a court may ascertain the location and extent by calling in a surveyor.
Easement holder’s obligations and rights
In basic terms, an easement gives the holder permission to engage in specific activities on the burdened property. In Oklahoma, this idea has been codified in what is known as a prima facia statement of the law of this state on the duties and liabilities of easement holders, which has long been found within 16 Okla. Stat. § 2. The statutory statement notes that the rights of the holder are "limited to those necessary and proper for accomplishing the purposes" of the easement. Moreover, the rights of the holder, in terms of what they can do on the servient estate, are also limited to those described in the deed. If the deed is silent, the law requires that the easement must be "reasonably necessary" for the purposes described therein.
Generally speaking, these typical rights (and limitations) attached to easements typically include among other things the right of the easement holder to:
Notably, an easement holder is not entitled to use its easement for any unlawful purpose, nor are they entitled to abandon it. This latter rule goes to the fact that an easement is inseparable from the dominant estate to which it is applied. The failure of an easement holder to use an easement for the purpose stated therein may result in loss of the easement. Furthermore, if the easement holder applies the easement in a manner materially different than the uses stated thereon, this could also result in the loss of the easement.
No infringement of the servitude’s right shall ever be authorized by the courts when it does not fall within the strict text of the deed, notwithstanding the fact that it would be attended with more convenience to the holder of the easement or that more inconvenience or expense would be incurred by the servient owner by the maintenance of the servitude as specified. In other words, ancillary convenience, expense or other considerations may not be considered so long as the primary purpose of the easement is fulfilled.
Resolving easement-related conflicts
Disputes over easements most commonly arise from issues involving obstruction of an easement, non-compliance with terms of an easement grant, failure to pay fees imposed by the easement, and disputes over easement location. Resolving these disputes can be expensive and time consuming. For this reason, there are penalties other than the payment of attorney fees for failure to abide by the terms of any easement grant. Federal regulatory commands and/or state statute may provide for the imposition of fines as well.
It is easier, and therefore less costly, to prevent easement disputes than it is to resolve a dispute once it has arisen. Often, an awareness of the terms of the easement is sufficient to prevent disputes. The parties should be careful to comply with the terms of their easement. For example, if the easement provides for reasonable ingress and egress , then a landowner should not block access to the parcel of land burdened by the easement. The easement holder (dominant estate owner) should use the easement only as granted in the easement document. Disputes may also arise when the servient estate owner (easement holder) attempts to take advantage of the servitude.
If the terms of the easement are carefully followed, disputes will likely be avoided. However, if a dispute does arise, it is likely that the parties, armed with knowledge of the terms and conditions of the easement, will be able to resolve the issue. If the issue cannot be resolved and litigation ensues, the court will likely grant a result that is fair and logical in accordance with the terms of the easement. If the parties cannot resolve the matter under the terms of the easement and/or through negotiation or mediation, it is usually best to go to Court to resolve the matter. Resort to the courts to resolve issues may be the most legally effective means of enforcing the terms of the easement.
Altering or ending an easement
Easements in Oklahoma can be changed or terminated in certain circumstances. The process and grounds for changing or terminating easements, however, depends on the nature of the easement. The procedure, grounds, and effect of changes or termination of easements are described below:
Non-Commercial Easements.
With respect to non-commercial easements, it is possible to change or terminate easements that have not been established by deed. O.S. 12 § 1051 et seq. (2008). An easement granted by deed may not be changed unless the parties agree in writing. O.S. 12 § 1012 (2008).
Termination of easements can occur when the parties to an express easement agree to terminate it. It is also possible for one of the parties to have the obligations of the express easement limited or eliminated by the court if the terms of the easement are ambiguous. An easement by necessity terminates when the necessity for it ceases.
Commercial Easements.
An easement may also be changed or terminated in other circumstances, such as:
(i) Where the dominant estate fails and is extinguished. The owner of a servient estate is entitled to terminate the easement when the dominant estate fails. This usually happens where the dominant estate has been severed into two separate pieces of land, causing the owner of the servient estate to be both the dominant and servient estate owner. The owner of the servient estate will have only an implied easement of necessity, and the court may limit the easement to its original scope. An implied easement of necessity created by operation of law terminates if the necessity ceases to exist.
(ii) If the dominant estate is abandoned. An easement may be terminated by abandonment when the owner of the dominant estate manifestly and unequivocally shows his intention to abandon the easement, and the intent is executed by some external act of the dominant owner. This involves a physical act denoting an intent to relinquish the easement. Once an owner of the dominant estate abandons the easement, the servient estate owner becomes the owner of the abandoned property.
(iii) When the underlying fee is conveyed subject to the easement and the purchaser has never accepted the easement. A person purchasing property can avoid the burden of an existing easement if he conveys the entire parcel to another person, and the second grantee never accepts the easement.
(iv) When the easement ceases to serve a necessary purpose. An easement ceases to have any effect on property when the need for it no longer exists. It becomes a nullity and is unenforceable.
Professional legal guidance
Apart from searching for local attorneys based upon specific knowledge of their reputation, residents in the area of my office can utilize the the Oklahoma Bar Association’s Lawyer Referral Service. For a nominal fee of $30, you can meet with an attorney for a one-hour consultation. It’s not clear from their website if locations outside Oklahoma City pay different referral fees, but that doesn’t seem likely. You can also search their database for a lawyer from anywhere in Oklahoma .
One really helpful Oklahoma resource is the Book: Oklahoma Easements: An Update, by Roberta L. Collins. It’s nearly 300 pages (and more than 50 years old!) of information regarding Oklahoma easements. It sells for $39.95 for printed, and $25 from Kindle. There are other good resources out there (such as advice from your neighbors!) but this is the best one I’ve found for Oklahoma easements.
Finally, here’s a link to Oklahoma’s Uniform Easement Act (Title 16, Chapter 3.)