Drawing Lines on the Land
Easements a Common Issue for Landowners
BIRMINGHAM, Ala. (DTN) -- In many cases, owning land also means owning an easement -- or several easements. Some may go back decades, and as property changes hands over the generations, the impact of those easements may be forgotten or even seem inconsequential.
A group of landowners in Texas found recently that a lack of specificity as to utility easement width became an issue when the utility company started to update transmission lines. These landowners asked courts to limit the utility to the width of the easement it had been using for decades. The utility disagreed. The case eventually went to the Texas Supreme Court for a holding that surprised many and set a precedent landowners should be aware of everywhere.
The easement in this case was held by Southwestern Electric Power, and it went back to 1949. It was a general easement, without much specificity written into the contract. Three landowners in Bowie County, burdened by the easement, filed suit against Southwestern after they were approached to negotiate for a wider allowance, for a small sum of money.
Initially, things looked promising for the landowners. Two lower courts in "Southwestern Electric Power Co. v Lynch" found for them regarding the issue of the allowable width of a general easement.
Because the original blanket, general easement did not set an allowed width, the courts held the utility should be required to stay within the width it had used for decades. When the original easement was granted, wooden-pole transmission lines were used, and the width did not exceed 15 feet on either side, for a total easement width of 30 feet.
In 2014, Southwestern began modernizing lines, replacing those wooden poles with steel. As part of this work, they sent landowners affected by the widening an offer of $1,000 each, to supplement and allow for the expansion to a width of 100 feet, more than triple the width the utility had been using to date. The landowners refused the offer, believing the utility was required to stay within the original 30-feet width.
The original easement did not set a specific width, but it noted the company had the right to access the property to do what was reasonably necessary to maintain the lines, along with ingress and egress over adjacent lands.
Tiffany Dowell Lashmet, attorney and Extension specialist in Agricultural Law with Texas A&M AgriLife, said this case showed how important it is to understand the language of originating easements.
"In the Southwestern case, the kicker was the original easement did not set a width for the easement," she explained. "The landowners' position was that there was an inherent limit based on what was used over the years. They looked at the same language and had different thoughts on how to interpret the contract, which was how we ended up in the Texas Supreme Court."
Lashmet said the lower court rulings, which were in favor of the landowners, were encouraging, but a number of amicus briefs were filed with the Texas Supreme Court, underlining the importance of the decision. Amicus briefs are filed with the court to offer information, expertise or insights that have a bearing on the case at hand. Many of those briefs, Lashmet reported, were filed for power companies by groups that use eminent domain and have easements. They were concerned about the impact a ruling on blanket easements would have across the state.
The Texas Supreme Court overturned the lower courts' rulings, and held the easement, even without a specified width, was viable. The Court did add that the grantee of the easement, here the utility company, was required to use it in a way that was considered "reasonable and necessary," thus providing some protection to landowners in future cases.
Lashmet added the landowners who brought the case were aware of the easement and that it was nonspecific as to width. "It was in the deed records; it was public knowledge and there was already the power line on the property. So, the landowners knew this land had an easement," she said. "It's true most landowners don't read the details of easement contracts, but they are legally charged to do that because it is filed with the deed records."
What do landowners, or those in the market to buy land, need to know about easements? First, understand that every state has a different set of property statutes, making it important to research the law in the state where the land is located. In general, though, there are some rules that cross most state lines.
Lashmet said when buying land pay attention to encumbrances on the property. This means looking at the title.
"A title commitment will list easements, leases, pipelines," she explained. "Pay attention to those encumbrances because you buy those with the land. Try to drill down into the details."
Lasmet shared a personal example where they were looking at property with a wind lease easement. "We could tell from the title commitment this lease existed. We had to look to see if it was a blanket lease, or if there were limitations. We had to ask what those limitations were. Then we had to decide if we were okay with that. The answer to those questions may not change the fact you want to buy that property, but they give you information you absolutely need if you intend to buy that land."
Easements are everywhere, and often rural areas are attractive because the price of land, and hence the price of the easement, is lower to negotiate.
When a company comes knocking or mails out letters regarding an easement across your land, Lasmet said the first rule is don't get rattled. "Look for details," she said. "Older easements did not have a lot of details, but a good, negotiated easement today covers a lot. You may even be in a position to renegotiate for specific limitations if an easement already exists, and for some reason the grantee of that easement wants to alter the agreement."
The complexity of these negotiations, and the need for details to put you in the best possible position to negotiate, make an attorney with experience in property law invaluable for many landowners.
"I know no one wants to hire an attorney," said Lashmet. "But what you are doing when you negotiate these easements affects descendants decades into the future. It is really worth having a lawyer negotiate the terms to protect the property and its future value. We have checklists pages long of what needs to be considered, and width is certainly one of those things."
She added while it's easy to get stuck on a dollar figure when negotiating easements, it's important to remember that long after the money is gone, the terms will still be there.
"You can negotiate for anything, including for that easement to revert to the grantor under certain circumstances. You have to be familiar enough with the law to know what to ask for. Property law requires expertise, and it is a unique area of the law. That is not to say that any licensed attorney can't handle this, but in my experience if you don't practice property law regularly you might miss an important detail."
In some cases, landowners are threatened with eminent domain by the company seeking an easement across their land. Lashmet said it's important, if that happens, not to panic, and not to sign anything until you are comfortable you understand all of the details. She noted there is a legal process that must take place, and despite what the person or company seeking an easement will indicate, there is time for that landowner to seek counsel and to consider the offer carefully.
"There are resources out there for people who find themselves faced with negotiating an easement. Some companies will push, they will threaten to sue you, and even to take your property. You have rights. You can negotiate, and there are resources that exist for you. Don't panic and sign," said Lashmet.
"There is a statutory process. In Texas, you have to get an initial written offer, and then there is a 44-day period before the company seeking an easement can file an eminent domain or condemnation suit in court. So, you don't have to make a decision in 24 hours. You have some time, and it's super important. You know your rights."
For more information on easements see:
Eminent Domain in Texas:
National Agricultural Law Center:
Victoria Myers can be reached at: email@example.com
Follow her on Twitter @myersPF
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