An easement is a tool in real estate law that allows a property owner to provide rights from their land to other people or organizations. The classic easement is the right of transit where a property owner allows a neighbor to cross their land to use a small road so the neighbor can access something on their property. For example, Person A might have timber they want to fell on the back side of their land, but they'd have to cross Person B's property to get there. B can offer A an easement to allow the transit of lumbering machinery and felled timber.

The arrangement sounds like it should be a good deal for everyone. Whether you are just being neighborly or want to make a profit, there is always a risk an easement could become a mess. Let's look at why that is and how a real estate attorney can help you avoid it.

No Sunset Provision

One of the most common mistakes in easements is the creation of perpetuity. Effectively, this means the easement stays in effect until the end of time because no one included a sunset provision. While there might be later arguments for curing the easement, such as non-use by the recipient, those usually involve going to court if the recipient wants to dig in their heels.

The better solution is to always sunset every easement you grant. If there is cause for continuing the easement, you can simply create a new one to cover the period past the sunset date.

Maintenance

Letting someone cross onto your property runs the risk of damaging your real estate. An easement for a road, for example, means at least some traffic. What happens if the recipient of the easement simply turns the road into a mud hole by running heavy equipment and four-wheel drives across it frequently?

A real estate attorney can include easement provisions that cover maintenance. You can assign maintenance responsibilities to the recipient. Likewise, you can state what level of maintenance is necessary. For example, the grant could state that the recipient must keep the surface paved at their expense.

Overbroad Easements

The law abhors a lack of specificity, and you should, too. Never create an overbroad easement. There is no reason, for example, to permit an air rights easement that allows a neighbor to build a taller fence than they require. Easements should always specify numbers. If they need a 10-foot fence, say so or run the risk it becomes a 20-foot fence years later.

For more information on real estate law, contact a professional near you.