From the perspective of a Real Estate Broker in Middle Tennessee with over 20 years of experience who has been intimately involved in a variety of raw land transactions, my advice to ANY land owner considering granting to any adjacent land owner ANY kind of easement on or through his property is a resounding “NO!”
Of course there may be exceptions, but I cannot think of many that overcome the wide range of pitfalls now and into the future.
I am currently engaged in a “Due diligence” period for a tract of land within a subdivision that was originally platted 35 years ago. When the subdivision was formed, it was “County” jurisdiction with Water and electric service from nearby towns . . . Sewer waste management would be regulated by the county in the form of individual septic fields. By county rules, each parcel was required to be a minimum of 5 acres.
This subdivision is a valley and has very slopey land which made finding enough suitable land (Percable for septic) on some parcels to be challenging . . . and so the easement game commenced.
Through the years, adjacent landowners were fairly quick to grant each other easements for driveway access and for waste line routing . . . Some owners even granted easement access to adjacent owners to install entire septic fields.
Zoom to present day, and we now have a veritable bowl of spaghetti of easements along with a real mess of governmental regulation issues as the rules changed through the years . . . additionally, there happens to be a “Blue Line Stream” that traverses the valley and passes through @ 50% of the properties . . . It happens to be close to the main road, so virtually every improvement made on those houses requires crossing over the creek . . . That wasn’t such a big deal 35 (or even 20) years ago, but environmental regulations have changed, so much of the existing creek crossing of drives and waste lines are no longer compliant.
the problem is that NOW these original owners are either attempting to sell their land or are expanding or improving their homes, and many are discovering that the county will not allow them to proceed until they meet CURRENT standards for septic lines and fields and EPA standards for crossing the stream.
This quagmire has completely squalched EVERY owner’s attempts to sell or improve their homes because with every visit to the County Codes or Health Dpt for septic results in additional issues emerging.
The end result is that many owners are finding their properties to be “unsellable” because the smart Buyers are doing their diligence before buying and discovering that they will be restricted sometimes based on what the adjacent neighbors did years ago.
Easements “run with the land” which means that once it’s recorded, it’s part of the deed and will apply to EVERY future owner. Unfortunately, some easements may not be discovered by a new owner until after completing the purchase.
When a land owner grants an easement, that owner is surrendering his right to use the land as defined by the easement in the future.
Other easements that might apply would be for the use of water (Streams and Springs). I think it could reasonably be argued that if there is a stream or a Spring on a property, adjacent properties might not show surface water but most certainly would access to water by way of installing a well on their own property.
Granting any kind of easement to adjacent landowner is, in my opinion, a bad idea. The parties to that agreement today cannot possibly fathom the unintended consequences of that easement. What if in the future, someone wants to build a house on the land, and the only viable access for a driveway to the House site is across a previously recorded easement, then there’s a problem to recon with . . . same goes with septic fields and lines.
I’m all for being “neighborly,” but at some point, common sense must come into play.
If you’ve been asked to grant an easement, I think your FIRST response should be “NO!”
If you’re inclined to entertain the idea, then I highly recommend VERY careful consideration be given to WHERE that easement will be and how it might affect your usability of your own land . . . AND how might it affect your ability to SELL your property in the future.
There now . . . I said it.