An Overview of Arkansas Easements
In essence, easements in Arkansas allow a person to use another’s land for a specific purpose. Easements set out a "use only" right to enter the property, whereas a license under Arkansas law would be for a use and could be revoked. Embodied in this general definition are a number of well-established rules and requirements. Most commonly, easements are formed by an express agreement between property owners (i.e., a deed or reservation from the seller to the buyer, or generally other documents) evidencing an intent to establish an easement over the land. However, easements can also be created and established by statute , including adverse possession, or by implication (i.e., a prescriptive easement).
Easements can govern the use of land for a variety of reasons. For example, a utility company might have an easement right to run above-ground power lines onto the property. A property owner might grant an easement to enter onto an adjoining farm to obtain raw materials for agriculture. In more general terms, easements are typically utilized to provide more access for property owners. This includes not only physical entry, but could also mean use rights and/or restriction rights for the benefit of the holding parcel of land.
The Different Types of Easements Under Arkansas Law
Types of easements recognized by Arkansas law
Among the different types of easements recognized by Arkansas law are prescriptive, express, implied, and easements by necessity. Generally, easements can be classified as either (1) an easement that does not terminate upon the conveyance of the dominant tenement, or (2) a temporary right to use the land of another that is only granted for a specified period of time or until certain conditions are met. There are several ways an easement may be created in accordance with Arkansas law: Easements by implication are negotiated in the creation of a servient tenement but without an express agreement. For instance, when an owner of multiple contiguous properties conveys three to a purchaser but excepts the fourth, retaining no access to the excepted parcel, a court may recognize a grant of easement by implication. In the instance where an owner conveys adjacent parcels to different parties and then sells the first parcel without mention or description of a recorded easement in favor of the retained parcels, a court may recognize an easement by implication. Despite the requirements of Arkansas law, courts have been known to recognize easements in contexts that use the term "easement" or "rights" but make no mention of easement by prescription or implied easement for example. For instance, if the parties agree that one party shall be able to cross or use a road on property owned by the other we can see this as an express easement, also referred to in Arkansas as a contractual easement. Given that easements are strictly construed in Arkansas, the absence of the words "easement" or "rights" dooms the possibility of the law to find it to exist explicitly. It is important to note that an easement is a "non-possessory estate" that provides a right of ingress and egress (i.e., the right to enter and pass over) that occurs across the servient estate (the property owner who is burdened by the easement). Thus, the possessor of an easement does not actually occupy or possess the land but rather uses the land, has a right to enter the land and crosses the land but does not occupy or possess the land so long as the rights do not exceed those apportioned by the easement. The principal distinction between an express easement and those arising by prescription is that a holder of an express easement possesses the right in the actual language of the document creating the easement. As a result, an express easement is recognized in writing (contractual easement) whereas a prescriptive easement, for example, is evidenced by the title of the servient estate. In addition to these easements, there are also statutory easements in Arkansas. Statutory easements are created by operation of state statute, such as the statutory easement that exists when two pieces of property are adjacent to one another. However, these statutory easements only apply if they are actually expressly filed of record in the county where the properties are located. Finally, easements can be classified as either positive or negative. A positive easement grants the holder the right to use the land for a specific purpose whereas a negative easement to enter is granted to prevent the servient landowner from doing something on his or her land; for example, preventing a servient landowner from obstructing the light coming from or over the servient land. An easement may also be a license which is a temporary permission to enter onto someone’s property by the property owner for a specific purpose. A license does not create an interest in real property and only grants permission to enter until the license is revoked. A revocable license creates no rights and is terminable at will. On the other hand, a license coupled with an interest creates an irrevocable right in the licensee to use the property for a specified purpose until that interest is terminated.
How Arkansas Easements are Established
As we have established in the above section concerning Arkansas easement law, there are different types of easements. These easements can be created in different ways. In Arkansas, an easement can be created by any means where the parties directly agree that each will cross the land of the other in some way. This means that easements can be created in a variety of ways. First, the easement can be created by a written contract. The writing needs to identify the parties, the property, and the rights of use that are being granted. This is usually a very simple process but is sometimes over looked by people trying to create an easement. Without a written document that spells out the rights that are being given you leave the potential to have a court re-interpret what those rights were. This is especially true in Arkansas, here we have a court system that is reluctant to create new property law rules. So, if you are unsure whether the easement you intend to give should be recorded in a deed or just a note in the property records does not work it.
Similarly, an Arkansas easement can be created by deed or reservation in title. In fact, we often see easements created by deed or reservation. This is especially true if the parties are neighbors. It is usually done simply by stating in a deed to a property that the owner reserves the right to a road to cross the property and gives a broader right for the road to public. Obviously, there are several ways to do this and it must be reviewed carefully. For example, just because a road is created does not mean that the road will be maintained. There are other considerations related to this.
Additionally both Arkansas and federal law allow for the creation of easements by prescription and necessity. In both cases, the laws are similar. First, in order to create an easement by prescription title it must be open, continuous, and exclusive. The period of time to acquire an easement by prescription is typically found in the state’s adverse possession statute. In Arkansas, the easement must be acquired between 5 and 7 years. If an easement is acquired by a necessity then the requirements are different in Arkansas. Here the courts will establish an easement by necessity if the property was severed and the property can only be accessed through an adjacent property. As in many cases, Arkansas views the benefit of the property owner as priority and regards property rights of the land owner as a second. However, this is one of the cases where the court has established a rule that has limited application. Again, our Arkansas legislature is generally reluctant to create new easement law rules. As such they allow the courts to do so on a very limited basis. Nonetheless, easements by necessity do exist in Arkansas.
Easement Holders’ Rights and Obligations
The rights and responsibilities of an easement holder are complex, and sometimes confusing, to the general public. Neither owners of servient estates nor holders of easements typically read the fine print in easements. They are busily engaged in their daily lives. And, as a result, disputes often arise even though they should be easily resolved with good counsel and advice.
Just what rights come with being an easement holder? Generally speaking, an easement holder has the right to do whatever is necessary to enjoy the easement inhering in the servient estate so long as his exercise of the right to use and enjoy the easement crosses no boundaries on the servient estate. In the case of a road easement, the right is to cross over another property in order to get from one piece of land on one side of the road to another piece on the other side — not to deviate from the easement route and cross over to another property on the far side. The easement holder cannot cut down trees or other plants or alter the topography in any way that would damage not only the land on which the easement is located but also adjacent properties. If at any point the easement holder’s enjoyment of the easement thwarts another use of the servient estate or encroaches on a neighbor’s property, the court may declare the easement abandoned or non-user.
Many times easement holders have the right to conduct reasonable maintenance on the property where the easement is located and to enjoy normal and customary uses of the property for the purpose of benefiting the estate for which the easement was created. This is particularly true of easements over which the holder has a right of way. Such easements may allow for statutory damages (Damages for Easement by Necessity), make the property assessable for tax purposes, impose liability on the easement holder for damage to the servient estate caused by him, and require the easement holder to indemnify the servient estate owner for liability imposed on him by third parties as a result of the easement holder’s negligent or willful acts or omissions.
Notwithstanding the typical rights of an easement holder, limitations may be present that are set out in the easement deed itself or may be implied in common law. Easement holders are required to respect the boundaries of the property over which the easement is granted, must seek consent before adding anything to the property, such as plant life or structures, must follow reasonable rules determined by the servient estate owner or reasonably required by the easement holder, may not unreasonably interfere with the normal use of the servient estate by the owner, must compensate the servient estate owner for damage to the estate’s property caused by the easement holder’s maintenance, and must not alter, change, or repair anything without permission.
Because some easements require the servient estate to take positive steps to help the holder use the easement, easement-holders are sometimes required to reimburse the servient estate owner for expenses incurred to maintain the easement. For example, an easement-holder who enjoyed a right-of-way over two adjoining servient lots, where the road was located on one lot, could not avoid liability for expenses incurred to construct a road on the second servient estate, because the consent rights previously held by the lot owner had been assigned to the easement-holder-holder by the original servient estate owner.
Easements may expire through laches, obstruction or merger of title, or abandonment. In addition, easements may be terminated by agreement, action in equity, or eminent domain.
Resolving Disputes Over Arkansas Easements
Easement disputes are a familiar legal face in Arkansas, as elsewhere in the United States. Whether the disagreement concerns the enforceability of a proposed easement, its scope and limitations, or its termination, there is no shortage of legal wrangling when it comes to questions of access and use of property. Much of the litigation over easements turns on the agreement between the parties, including any deeds drafted by one or both of the parties, and resolving whether the terms of the broad language allow more or less restrictive use than the surrounding circumstances of the dispute contemplate. Disputes over easements arise in numerous ways. Common disputes involve the following: – The scope of an easement and whether uses have been exceeded; – Termination of an easement for adverse possession or abandonment; – Interpretation of ambiguous restrictions in a deed granting the easement; and – Application of the rule against perpetuities on the length or scope of an easement. As is often the case with legal disputes, there is no "one size fits all" resolution to easement litigation. Negotiation, mediation and litigation typically proceed in varying degrees depending on the nature of the dispute, the pre-dispute relationship of the parties and their attitudes about pursuing the dispute through to conclusion. The general trend among reported Arkansas easement cases exposes a court’s uneasiness with ambiguous easements , such as those granting the right to use land for "such purposes to which is suited." ‘See Conway Corporation v. Q&J Development Co., 332 Ark. 282, 965 S.W. 2d 86 (1998) (holding that an ambiguous right-of-way across land is unqualified and may be used for any purpose). On the other hand, interpreted easements may be subject to various legal restrictions. The interpretation of easements has turned on legislative enactments, case law, public policy statements, a preference for construing grants strictly against the grantor, and the intended purpose of the easement. Although an easement originally may have been created to access one property from another, circumstances change. Property owners move, develop or otherwise alter serving and servient properties, and access issues arise. Local governments undertake road construction. Utility providers expand their services. Easements must adapt. Few remaining issues are litigated to resolution, given courts’ preference for negotiated settlement of disputes. The amount and potential utility of discovery and pretrial proceedings depends on what information is available and the willingness of the parties to share it. Mediation is a common alternative for the resolution of easement disputes. While it does not always resolve the case, it lessens the number of trials, and when it is productive, promotes early resolution of disputes.
Amending or Deregistering Easements
As set forth under Arkansas Code Annotated sections 18-15-204 et seq. easements can be modified and/or terminated. This is often needed where the easement may have become obsolete due to advances in technology or changes in circumstances that make the use of the servient estate no longer necessary. Deeds of easement sometimes provide a method for termination and/or modification of the easement. If the deed of easement does not provide a method, then the parties to the easement or the property owners can file an action pursuant to Arkansas Code Annotated sections 18-15-204 et seq. and ask the court to terminate or modify the easement.
If the parties cannot reach an agreement on how to terminate or modify an easement, the trial court will appoint a commissioner to inspect the property, listen to the testimony of witnesses and make a report of the findings to the trial judge. A report of the commissioner is then filed with the court. After an opportunity for objections the court decides whether the easement should be modified or terminated.
One type of circumstance which might require a change to the easement is where an easement is too broad. For example, when an easement is drafted a landlocked tract of land might have been categorized as having an unlimited right of ingress and egress over the overburdened land of another. In such situations it would not be the intent of the owner of the burdened tract of land to permit a passenger to drive a vehicle onto his/her land to turn around at their convenience or for a series of strangers to film a movie on the burdened tract.
Another circumstance that might require modification of an easement is where the sole purpose of the easement can no longer be carried out or the easement is no longer needed at all. For example, a telephone company obtains an easement for the purpose of constructing telephone lines across a property for the benefit of a farm that was within reach of the phone company’s existing wires. After the farm had been sold to a residential developer for construction of homes and the phone company obtained a service easement from the developer. In such a situation, there is no need for the easement across the farm, and the telephone company could ask a circuit court to terminate the original easement.
Dealing with Arkansas Easements – Tips and Strategies
When dealing with easements in Arkansas, there are several practical tips that can help property owners and buyers navigate the complexities of these legal interests. First and foremost, it is essential to conduct thorough due diligence before purchasing a property. This includes reviewing the property’s title policy and any surveys that may have been prepared. Surveys can provide valuable information about the location and extent of easements on the property. Additionally, more recent surveys can indicate whether or not an easement has been vacated by non-use.
Property owners should also take the time to understand any easements of record that affect their property. Review the terms of the easement in detail, paying close attention to any obligations or restrictions that may be imposed. It may be helpful to consult with an attorney or other real estate professional to fully grasp the implications of the easement.
When dealing with an easement of record, it is important to comply with the rights and responsibilities set forth in the document. Easement holders may be within their rights to enforce the terms of the easement if they are violated. For example , an easement holder may have the right to enter onto the property to maintain or repair the easement, or to prevent encroachment onto the easement area. Failure to comply with an easement can lead to significant legal and financial consequences.
For property buyers, it is recommended to obtain a title insurance policy early in the purchase process. A title policy will typically include an examination of the chain of title and all easements, which can provide important information to the buyer. In the case of an attorney opinion title abstract, at minimum, the attorney should examine both the deed and easement itself to determine the rights and obligations of both parties and whether the easement is adequately described.
Finally, property owners and buyers should not hesitate to seek the assistance of professionals when dealing with easements. An experienced real estate lawyer can help navigate the complexities of easements and answer any questions that may arise.