Understanding Easements in Oregon
What is an “easement”?
In plain language, an “easement” is a legal right to use another property owner’s property for a limited use. An easement allows the holder of the easement to use the real property of another for a specific purpose. Title to the underlying land is retained by the owner of real property. In practice, this means that the owner of real property retains all ownership rights except for those specifically covered by the easement.
There can be confusion over what an easement actually allows an easement holder to do. An easement does not provide an easement holder with carte blanche to use another property owner’s property as if it is their own. Sometimes, an easement holder must be educated on the nature and scope of their easement rights.
A common reason for creation of an easement is to facilitate access to property, either because it is useful or necessary. When an easement is created, several key issues arise, include the following:
- Who grants the easement over their property;
- Who has a right to use the easement;
- The purpose of the easement;
- The location of the easement;
- Liability related to the easement;
- Maintenance, repairs, and improvements related to the easement
- Modification and termination of the easement.
Easements may (and should) be recorded in county records. If an easement is recorded in county records, then an owner of real property, as well as potential buyers, will be deemed to be on “constructive notice” of the easement—i.e., an owner of real property will be viewed as having fair notice of the easement since they could have looked it up in public records.
Easements which have been drafted and recorded may or may not clearly outline the rights of the easement holder and the property owner. An attorney can help you draft an easement document to protect your rights, limit your liability, as well as outline a process for resolving disputes which may arise. A well-drafted easement document can help avoid or at least minimize unintended consequences. An “express easement” is a written document which outlines the nature of the easement and is the best way to ensure that parties define and control how an easement affects parties and their property rights.
A well-drafted easement allows people who were not involved in the creation of the easement to easily understand the nature and scope of the easement. However, easement interpretation can be an issue, especially when easements are poorly drafted. Oftentimes, easement disputes arise over written easements years—sometimes decades—after an easement was created; without adequate facts and context, parties can be left guessing about what was intended by the original parties to the easement.
It is possible for an easement to exist even though there is no recorded easement. An easement can arise from historical facts and circumstances. This is typically referred to as an “implied easement.” As a buyer, it is therefore important to thoughtfully conduct due diligence to help discover any potential easement issues which might exist by examining the property, talking to neighbors, and researching the history of the property and surrounding properties. As a property owner, it is essential to consider documenting longstanding practices with a neighboring property owner, even if there is a friendly relationship—you never know how things might change when ownership of property changes.
Easements can arise in situations where a property would otherwise be landlocked. Typically, such an easement would be called an “easement by necessity.” An easement by necessity allows an owner of landlocked property to obtain easement rights which allow for legal access to their property.
An “easement by prescription” is an easement created when a party can prove that they have used another property in a manner which is open, notorious, and adverse to the true land owner for a continuous and uninterrupted period of ten years. In effect, an easement by prescription allows a party to obtain an easement over another property without the property owner’s agreement.
There are several common types of easements. One of the most common easements is an easement for ingress and egress, which allows an easement holder to go across another property owner’s property, usually to access their own property. Utility easements allow local utility companies such as the power company to access, maintain, and upgrade infrastructure, and allow one property owner to access another’s property when the former’s utilities are located on the latter’s. An easement can also be negotiated to protect a property owner’s views so that a neighboring property owner cannot block the easement holder’s views.
Easements can be terminated by agreement of the parties involved. Easements can also be terminated by a variety of historical facts and circumstances, but then it may be necessary to go to court to formally obtain a court’s decision to formally terminate an easement.
Misuse of easements can lead to a number of problems. Misuse of an easement can interfere with a property owner’s ability to have full enjoyment of their property. If left unaddressed, misuse of an easement over time may lead to modification of the parties’ easement rights. Conflicts over easements can sometimes escalate and lead to serious conflicts with neighbors, including potential safety issues.
Easement conflicts are a civil matter, so normally law enforcement will not get involved in an easement dispute unless there are also issues which raise safety concerns. Sometimes easement disputes can involve situations which have both a civil component and a criminal component.
ORS 105.175 lays out the obligations of easement holders. Under ORS 105.180, a party may have the ability to sue another party when there is an easement dispute. In such a lawsuit, the prevailing party has the potential to recover damages and attorney fees if the losing party is found to have damaged the easement.
On the north coast, if an easement dispute needs to be decided in court, it would be heard in either Tillamook County Circuit Court or Clatsop County Circuit Court, depending on the location of the property. Easement disputes are typically decided in a “bench trial” by a judge, not by a jury.
At Coast Land Law, we help clients with easement issues, from understanding easement rights, to assisting with easement negotiations, to filing and defending lawsuits involving easement rights. Please contact Coast Land Law for a consultation about you can best protect your easement rights.