General, Unrestricted Access Easement does not Guaranty Unlimited, Unrestricted Use

(Watch your Language [with easements] & Say What You Mean, Precisely or a Judge Will Tell You What You Meant #12)

  

By: Stephen D. Richman, Esq. - Senior Counsel, Kohrman, Jackson & Krantz LLP 

                                           

Watch Your Language. As established in other “Watch Your Language” articles for this Blog, as a general rule, courts will uphold language in commercial agreements, unless it is contrary to statutory law or public policy. They traditionally presume that commercial parties are on more of an equal playing field and are more sophisticated concerning commercial real estate transactions, since both parties to a commercial transaction will usually have attorneys to review their documents. Because of this judicial deference to “commercial language”, you must say what you mean, precisely, or a judge will decide what you meant. This principle is just as true with regard to easements, as it is with contracts, leases and other commercial documents.

Easements in General. An “easement” is basically a right to use the property of another for a specific purpose. Most common are drive/access easements and utility easements. While there are limited exceptions, most easements are created by separate written instruments (or are contained within deeds) and are recorded. Some easements are personal in nature and only apply while the burdened landowner owns the property, and others are “perpetual” and burden the land forever. Since forever is a long time, it makes sense to retain legal counsel and not try this at home with a $5.00 Easement from “Forms are Us.”

Easements will either spell out the specific rights to use the property granted to the easement “holder” (e.g. right to use the property to place above-ground or below ground electric lines), or be “blanket” in nature and not be limited as to use. Many easements will also contain 1) restrictions for the benefit of the easement holder which burden the land described as the “easement premises” (e.g., no buildings may be constructed upon the easement area); and 2) obligations imposed upon the easement holder for the benefit of the burdened landowner (e.g., requirements such as maintenance of the easement premises, and relocation of such premises or the facilities within the easement premises).

Easement rights (and easement obligations) are often drafted in general terms, with the parties assuming their intent is clear. The relatively recent case of J.T. Mgt. v Spencer, 2017-Ohio-892 (11th Dist. Ct. of App., Trumbull Cty.) reinforces the need to be specific and leave as little as possible to “interpretive chance.”

J.T. Mgt. v Spencer.  The facts of the “J.T. Mgt.” case are simple enough (the law, not so much). J.T. Mgt., the appellant owns a residential parcel and a commercial parcel that are adjacent to each other in Warren, Ohio. The commercial parcel is a 1.4-acre lot fronting S.R. 46 that the appellant planned to build a commercial structure on.  The residential parcel is known as “Lot 9” in the 9-unit residential subdivision known as Hidden Hills. J.T. Mgt. bought Lot 9 and its ancillary 1/9^th interest in the private drive known as Hidden Hills Drive (which traverses the subdivision, connecting it to S.R. 46), after they bought the commercial parcel, presumably, not because of its secluded residential tranquility.

When J.T. bought the commercial parcel, it also “inherited” an easement of record, granting access to/from such parcel to Hidden Hills Drive. The easement in place was established when the area was virtually all residential in character. Even though J.T.’s commercial lot had frontage on S.R.46, it wanted to ensure that its easement rights to/from Hidden Hills Drive, and its 1/9^th right as owner of such drive meant it could use the drive for any and all uses, including commercial traffic. This way, J.T. would, in effect be connecting its commercial property directly to the 9-unit residential subdivision. Consequently, On July 11, 2013, appellant filed a complaint for declaratory judgment, which, if successful would have resulted in an enforceable judicial edict of its plans for commercial connectivity. Appellees, the owners of the remaining eight lots in the subdivision and the Hidden Hills Homeowners Association filed an answer (denying the material allegations of the complaint) and a counterclaim/cross claim (demanding judgment declaring that appellant does not have an ownership interest in the private driveway, but only a right of way easement to access S.R. 46 for residential use).

The trial court ruled in favor of the appellant on the issue of ownership, declaring the appellant a one-ninth owner of Hidden Hills Drive by virtue of its ownership of Lot 9. However, on the issue of the use of the easement, the court found in favor of appellees and held that using the private driveway for commercial ingress and egress was impermissible because it would increase the burden on or materially enlarge its right in the easement. Appellant appealed this decision to the 11^th District Court of Appeals (and appellees appealed the trial court’s judgment declaring the appellant a 1/9^th owner of the drive).

During the appeal, the appellant set forth three “assignments of error” (claimed mistakes with the trial court’s ruling). Appellant first argued that it should be permitted to expand its express easement in the private driveway to use it for commercial purposes because the area has changed from primarily residential to primarily commercial. It cited an older Ohio Supreme Court case (Erie Railroad Co. v. S. H. Kleinman Realty Co., 92 Ohio St. 96 (1915)) that provides that changes in the use of an easement are permitted to the extent that they result from “the normal growth and development of the dominant land”. The 11^th District Court in J.T. Mgt., however, citing precedent of its own (Solt v. Walker, 5th Dist. Fairfield No. 95-CA-64, 1996 WL 363438 (May 13, 1996) and cases cited therein) summarized the law regarding changes in the use of an easement that is at odds with the appellant’s argument. Namely, that “While an easement or right-of-way gives a landowner the right to enter and use the land of another, [and some change in use is permitted due to normal growth and development] the owner of a dominant estate may not increase the burden nor materially enlarge his right over the servient estate.” The appellate court in J.T. outlined the following four factors (that it cited from the Fifth District in Sol) to help determine whether a dominant estate has unreasonably expanded the use of an access easement: “1) the amount of increased traffic on the easement; 2) the time of day when vehicles used the easement; 3) the extent that traffic noise increased; and (4) whether vehicles using the easement travelled at excessive speeds.”

Applying the facts to the law, the court of appeals in J.T. easily dismissed appellant’s argument that a commercial use of the easement would be a reasonable and normal increase of use. That is because both parties stipulated (agreed) to a traffic study that showed a fast food restaurant would have an average weekday traffic volume of 2,452 vehicles, resulting in a daily traffic volume increase on the easement of 6,352 per cent over the actual daily traffic count of 38 vehicles under the current residential use. The trial court and court of appeals in J.T. Mgt. also pointed out that: 1) none of the cases cited by appellant held that use of an easement can be expanded from solely residential uses to include commercial uses; 2) commercial use would result in a financial burden to appellees because the driveway is maintained by the homeowner’s association and is insured by the individual property owners via policies that insure them solely for residential use of the driveway; and 3) the increased traffic would inconvenience the property owners and impinge on their beneficial enjoyment of the right to use the driveway. Based on these findings, the courts in J.T. Mgt. concluded that the proposed commercial use of the easement would create an unreasonable burden on the easement.

Appellant’s second main argument was that the language of its express easement is stated in broad and unrestricted terms, and accordingly, it should be interpreted as allowing use of the easement for commercial purposes.

Upon first glance of the easement language, appellant’s argument seems like a good one.

The subject easement provides: “[T]he grantors, in consideration of the sum of One Dollar, paid by the Grantees * * *, do hereby grant ** * unto the grantees, their heirs and assigns forever, a right of way on and over a certain piece of land owned by the Grantors as follows (legal description omitted) * * * [f]or the grantees, their heirs and assigns, * * * to freely pass * * * on foot, or with vehicles of every description, to and from [S.R. 46] to said land of the grantees.”

Clearly, there are no restrictions as to use in the subject easement. Consequently, no restrictions means unlimited use/rights, right? Not in the legal world of contract interpretation.  Silence, or overbroad language usually means the parties’ intent is not clear within the four corners of their documents, and accordingly, surrounding circumstances and extrinsic evidence need to be considered.  In the words of the Ohio Supreme Court, “The language of [an] easement and the surrounding circumstances provide the best indication of the extent and limitations of [an] easement. Apel v. Katz, 83 Ohio St.3d 11, 17 (1998).

The trial and appellate courts in J.T. Mgt. had no problem finding that the surrounding circumstances of the easement at issue favored the appellees and residential use, mainly because the parties to the lawsuit stipulated that the only use ever made of the private driveway from its construction to the present was residential, to provide the property owners access to their homes in the Hidden Hills Subdivision. Additionally, the J.T. Mgt. courts recognized that Hidden Hills Drive remains zoned for residential use only. Accordingly, according to the court of appeals in J.T. Mgt., when the easement was put in writing in 1975, “the parties could not have intended its use for commercial purposes because such use was never made of the driveway and would have been prohibited by law. We therefore hold the trial court did not err in finding that the parties did not intend the driveway to be used for commercial purposes and thus the express easement does not authorize such use.”

Appellant’s “strike three” argument was that as a 1/9^th owner of the drive (vs its right as an easement holder) it had the right to use the drive for any ingress/egress; residential or commercial. However, the court of appeals in J.T. held that “while appellant has an ownership interest in the private driveway, it is part of the Hidden Hills Subdivision and is therefore subject to the deed restrictions in the Declaration of Restrictive Covenants. The restrictions forbid ‘trade’ from being carried on upon any lot in the subdivision.”

What is the moral of this story?  Listen to what judges are saying with regard to interpreting your easements, leases, purchase agreements and other contracts: “When the language of a written contract is clear, a court may look no further than the writing itself to find the intent of the parties [So, be clear]. In addition, we will look to the plain and ordinary meaning of the language used in the contract unless another meaning is clearly apparent from the contents of the agreement…” [So, if your meaning cannot be found in a dictionary, define it in the document so it is clearly apparent]. “The well-known and established principle of contract interpretation is that [c]ontracts are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced or not evidenced by the contract language [So, evidence your intent in the document].

While I think the court in J.T. Mgt. got this one right, and the appellant did not have a chance to evidence its intent in the easement, because it “inherited it”, this case, and the accompanying time and attorneys’ fees would not have been necessary had the parties limited the easement access rights for residential purposes only.

Maintain does not mean Relocate

(Watch your Language [with easements] & Say What You Mean, Precisely or a Judge Will Tell You What You Meant #11)

                                              

Watch Your Language. As established in other “Watch Your Language” articles for this Blog, as a general rule, courts will uphold language in commercial agreements, unless it is contrary to statutory law or public policy. They traditionally presume that commercial parties are on more of an equal playing field and are more sophisticated concerning commercial real estate transactions, since both will usually have attorneys to review their documents. Because of this judicial deference to “commercial language”, you must say what you mean, precisely, or a judge will decide what you meant. This principle is just as true with regard to easements, as it is with contracts, leases and other commercial documents.

Easements in General. An “easement” is basically a right to use the property of another for a specific purpose. Most common are drive/access easements and utility easements. While there are limited exceptions, the vast majority of easements are created by separate written instruments (or are contained within deeds) and are recorded. Some easements are personal in nature and only apply while the burdened landowner owns the property, and others are “perpetual” and burden the land forever.

Easements will either spell out the specific rights to use the property granted to the easement “holder” (e.g. right to use the property to place above-ground or below ground electric lines), or be “blanket” in nature and not be limited as to use. Many easements will also contain 1) restrictions for the benefit of the easement holder which burden the land described as the “easement premises” (e.g., no buildings may be constructed upon the easement area); and  2) obligations imposed upon the easement holder for the benefit of the burdened landowner (e.g., requirements such as maintenance of the easement premises, and relocation of such premises or the facilities within the easement premises).

 Because of the possibility of easements existing forever, and the potential for unintended consequences due to a court misinterpreting easement language, “don’t try this (easement review/analysis/negotiation) at home”, without legal counsel.

Easement rights, for example often do not go far enough. If you need to install a storm water drainage pipe on your neighbor’s property (assuming the neighbor consents) you need to insist upon much more than the right to install the piping. The easement should also include the right to construct, remove, reinstall, reconstruct, operate, enlarge, supplement, repair, inspect, maintain and relocate such storm water drainage pipes as well as the right to permit storm water to flow through such piping. Similarly, easement obligations are often drafted in general terms, with the parties assuming intent is clear. The relatively recent case of Aqua Ohio Inc. v. Allied Indus. Dev. Corp., 2014-Ohio-1473 (7th Dist. Ct. of App., Mahoning Cty.) helps to reinforce the need to be specific and leave as little as possible to “interpretive chance.”

Aqua Ohio Inc. v. Allied Indus. Dev. Corp.  In the “Aqua Ohio” case, Aqua had an easement right to lay and maintain an 18” waterline across land owned by Lake Erie & Eastern Railway Company (which land was later sold to Allied). The easement agreement specifically required the easement holder to lay the pipeline so as not to interfere with railroad tracks on the property and to maintain such pipeline.

A number of years later, the waterline began leaking and flooded portions of Allied’s property. The leaking was eventually remedied but Allied (presumably still concerned) took the position that the waterline interfered with its plans for the property and that the easement holder needed to and was required to relocate the waterline. While the procedural facts are a bit muddled, the court of appeals upheld the lower court’s judgment in favor of Aqua, based on what the courts claimed was the plain and ordinary meaning of the language used in the contract. The 7^th District Court of Appeals held that Aqua was only prohibited from interfering with the tracks when it laid pipeline, because that is specifically what the contract called for. Allied alleged that per the contract, any time Allied determined that the waterline was interfering with the development of the property, the waterline would have to be removed and relocated. As clearly stated by the court, “Reading of the contract in the manner Allied suggests ignores the plain language of the contract and is illogical.”

Also important to the court was that the plain language of the easement agreement was consistent, throughout. In the remedies section of the agreement, damages were only allowable if they resulted from the “improper maintenance, operation and/or use of the waterline.” There was no specific mention of “interference damages.”

Couldn’t Allied have taken the position that removal of the pipeline was part of Aqua’s duty to maintain? It is certainly possible that the original owner of the burdened property intended that to be the case. The court, however would have no part in writing presumed intent into the contract.  That is the opposite of what Ohio law (and most other jurisdictions) require of a court when interpreting commercial contracts. As aptly summarized by the court in Aqua, “When the language of a written contract is clear, a court may look no further than the writing itself to find the intent of the parties. In addition, we will look to the plain and ordinary meaning of the language used in the contract unless another meaning is clearly apparent from the contents of the agreement… The word ‘maintain’ is not defined by the agreement, therefore, we must use the ordinary meaning of the word. Maintain means, ‘To preserve or keep in a given existing condition, as of efficiency or good repair.’ Webster’s II New Riverside University Dictionary 717 (1984). This does not mean relocate or move. As such, we will not read such language into the contract.”

What is the moral of this story? As with all of our “Watch Your Language posts, it is the same moral, just a different story. Namely, regarding easements, leases, deeds and other commercial contracts, courts are not psychic mind readers; they are “literal translators”, so say what you mean, precisely, or a judge will decide what you meant.

Real Estate 101: Termination of Easements by the Doctrine of Merger

When a property owner holds an easement on neighboring property and later acquires title to that neighboring property, the easement automatically terminates by operation of law due to the merger of title. After all, a property owner cannot hold an easement on its own property.

Confusion can arise when the joined property is later separated again between two different owners. Does the easement that previously existed revive? Typically, the answer is ‘no.’

Once extinguished, the easement no longer exists and therefore there is nothing to revive.  At the time the property is re-divided, a new easement would need to be created. The ways that can happen are by express grant, reservation or implication.  While deeds typically containing general language in the transfer that recognizes all existing easements such “boilerplate” language in not sufficient to revive the old easement. The language of “…subject to all easements….” applies only to valid easements.

A new easement can mirror the location and other details of the old easement but merely referencing the prior easement is not sufficient to revive it. The reference must be accompanied by language that makes it clear that a new easement is being created.

It is possible that a court will determine that the creation of a new easement is implied or necessary due to the circumstances of the severance. However, an acquirer taking title to one half of the newly re-divided property should not rely on the possibility or probability that a court will agree with its desired interpretation.

On the flip side, under limited fact-specific situations, a court may not enforce the doctrine of merger if it finds evidence that the party in interest did not intend the merger to take place or it to enforce the merger would prejudice the rights of an innocent third party.

Parties should also understand that stating their intent to create a new easement in a purchase agreement is not sufficient to revive the prior easement. The appropriate granting language must be in the transfer deed.

Bottom line, if previously combined property is about to be separated between two parties and their intent is to revive the prior easement, the transfer deed separating the property back out must clearly state what the parties intend with respect to the old easement or risk losing in court later.

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When Improvements Abut Property Lines: Consider a Maintenance Easement

When improvements abut property lines, landowners will inevitably encroach on the neighboring property when maintaining and repairing their own property.  Of course a landowner can always just ask for permission to have equipment, contractors etc. go onto the neighbor’s property while conducting the repairs, but that assumes the neighbor will be reasonable and accommodating. Even if a good relationship between neighbors exists today, it could change in the future or the property may change hands and the new neighbors may not be cooperative.

If the need to encroach on the neighbor’s property will occur on any regular basis, one solution is to enter into an easement agreement for purposes of maintenance. Such easements can be simple (3-4 pages) or complex (30+ pages) as needed, based upon the needs of the property owners and the value of the improvements that are affected, and are typically recorded and run with the land.  This would differ from a license agreement. License agreements are a less permanent solution, are typically not recorded, may be shorter in duration and are just between the parties to the license and their permitted assignees.  Easements, unlike licenses, are insurable under the property owner’s title policy

At a minimum, every easement needs to clearly identify the parameters of the easement. For example, when a parking lot abuts against a neighbor’s fence or driveway, a simple maintenance easement that’s runs approximately 10’ along each side of the property line may suffice.

The easement agreement must also contain a formal grant of the easement right and identify the purpose of the easement, such as “the nonexclusive right, privilege and easement upon, across over and through the portion of the easement promises that is located on the [neighbor’s] property for the maintenance and repair of improvements located on the [landowner’s] property”.   

Limitations on the easement would include not causing damage to the other’s property, or unreasonably impeding or impairing the neighbor’s use of its own property.

The easement term should also be addressed. Typically such easements would be perpetual unless the parties to the agreement mutually agree to terminate. However, if there are any circumstances in which either party might have legitimate reason to want the easement terminated earlier, then it should be addressed in the agreement. One example would be if the easement is unilateral, not reciprocal, and the landowner needing the easement agrees to pay for the easement right. If the landowner stops making the agreed upon payments, the easement agreement should address the neighboring landowner’s right to terminate the easement due to nonpayment.  

In complex situations, where there are costly improvements that are intertwined with other property owners’ improvements, the parties may want to include more extensive obligations to maintain improvements in good repair at a specified level of quality, and to indemnify the other for damages it may cause. One example of a more complex support and encroachment easement would be the reciprocal assess and easement agreement and other related maintenance easements between the City of Cleveland and Cuyahoga County regarding the Cleveland Convention Center, the City parks located on top of the Convention Center and the property lines that run between the parks, Public Auditorium, the medical mart, and parking garages. Copies of these easement agreements are recorded in the county property records and are public documents.

Whether the potential maintenance and support issues between neighboring properties are significant or simple, recording a reciprocal easement agreement may be the most viable lasting solution.

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CLE Updates: Upcoming Real Estate Educational Seminars

In one sign that spring is here, the number of educational seminars on real estate topics is blooming.  Below is information regarding several upcoming seminars:
1.  The Ohio State Bar Association (OSBA) is sponsoring a Land Use and Zoning seminar on Wednesday, May 21, 2014 in Cleveland- live- (The Ritz Carlton, 1515 W. 3rd St., 44113) and in Columbus--live and via webcast on Wednesday May 14, 2014 (OSBA offices, 1700 Lake Shore Drive, 43204). Click here to access the OSBA's seminars.

2.  Sterling Education Services (SES) is sponsoring a seminar titled "Landlord-Tenant Law" on Friday, April 25, 2014 in Akron, Ohio (Holiday Inn Akron West, 4073 Medina Road; 330-666-4131).  Log on to www.sterlingeducation.com or call 715-835-5132 to register.

3.  National Business Institute (NBI) is sponsoring a seminar titled "Road and Easement Law from A to Z" on Monday, June 2, 2014 in Cleveland (Holiday Inn Independence, 6001 Rockside Road) . Order Now via the Web or Call: 800-930-6182.

+ Don’t Forget 4. Early-bird OSBA Convention registration discount extended to April 18 Register today and save $50 off full or $25 off single day registration. The OSBA Annual Convention, April 30-May 2, at the Hyatt Regency Hotel in Columbus, continues to be one of the best CLE values available to Ohio lawyers. In addition to being a great value, they have planned many new and exciting features for the 2014 Convention, including: Special programming to celebrate and honor our military veterans for their service to our country; A larger selection of CLE courses: 51 sessions, organized into 5 different tracks; Shorter 60-90 minute CLE sessions; Comprehensive programming designed specifically for the general practitioner; and Sunrise and sunset CLE options to maximize your time at Convention. Offer expires April 18. Log on to www.ohiobar.org/convention, or call their member service center at (800) 232-7124.

FAQ's re: Creating and Terminating Private Easements

The following article was prepared by John Murray, an associate attorney with Kohrman Jackson and Krantz P.L.L.

Following last week’s blog post on creating and terminating a public right-of-way on private property, this week we want to address the creation and termination of easements, or private rights-of-way. The law governing the creation and termination of easements is not as straight forward as one would hope, and so the below FAQ format should be helpful for any real property owner hoping to understand the contours of easements and how they affect property rights and ownership.

First, what is an easement?

Ohio law defines an easement as a grant of use on the land of another. In other words, one land owner has the right to use another landowner’s (typically a neighbor’s) property for some purpose. An easement is only a right to use another’s land for some limited purpose and does not give the easement holder a right to possess the neighbor’s land or use it for any whim and desire. The property on which the easement is located is often called the “servient estate” because it serves, or is burdened by, the neighboring property which holds the easement. The neighboring property which holds the easement, or has the right to use the easement, is called the “dominant estate” because it benefits from the easement.

A classic example of an easement between neighboring business owners is the shared use of a parking lot that is located on one business owner’s land. That business owner, we’ll call him AlphaCo, would grant to the neighboring business owner, we’ll call her BetaCo, a right to use the parking lot for the limited purpose of customer parking. If so limited, the easement would not allow BetaCo to use the parking lot for an outdoor concert, art fair, or a private cookout for her and her friends.

How are easements created?

Under Ohio law, easements are created by one of three general events or actions. First, an easement may be created by an express grant or agreement. In an express grant, the owner of the servient estate conveys to the owner of the dominant estate a right to use his or her land for some limited purpose. Importantly, an express easement grant cannot be an oral agreement; it must be expressed in writing, such as in a deed, lease, or other formal conveyance that is recorded in the office of the county recorder where the servient estate is located.

Second, an easement may be created by implication, which means that it is created by special circumstances that show an easement exists even though an express grant was never made. The key factor in an implied easement is the determination that without the easement, the dominant estate has no beneficial use to the landowner. For example, where one landowner is landlocked by a neighboring landowner and must go through the neighbor’s land to access any public road or street, the landowner may claim an implied easement to cross her neighbor’s land. Without the easement, the landowner could not travel to or from her property, which would render the land valueless.

The third general way an easement can be created under Ohio law is by estoppel. Easement by estoppel exists when one landowner promises a neighbor that the neighbor may use the landowner’s property for some limited purpose, the neighbor spends money or takes other action in reliance on that promise, and then the landowner revokes his promise and the neighbor is consequently harmed. Where such circumstances exist, the courts will not allow the landowner to revoke his promise or deny that he granted an easement.

If I have granted an easement to a neighbor, how can I terminate that easement?

An easement that has been created by an express grant, such as between AlphaCo and BetaCo above, may be terminated in a several ways. The easiest way to terminate such an easement is simply by agreeing with the easement holder to end the easement. The parties to an easement may always agree to terminate the easement. This may be done prospectively by setting a time limit on the easement when the easement is created, say ten years, or may be terminated at any time if the subservient and dominant estate holders mutually agree to end the easement. Similar to the creation of an easement, the termination of an easement also needs to be in writing and recorded in the county recorder’s office so that all future buyers of either the servient or dominant estate know that the easement has been removed.

What if the easement holder has not actually used the easement for a very long time, can an easement be terminated by non-use?

When the holder of an easement completely stops using the easement for an extended period of time, the easement may be extinguished by “abandonment.” Abandonment is proven by showing that the easement holder has not used the easement for an extended period of time (typically twenty-one years or more) and has also demonstrated intent to abandon the easement. Intent can be demonstrated by affirmative and unambiguous actions or statements that the easement holder desires to give up the easement, such as a change of the dominant estate’s property that would render the easement completely inaccessible.

What if there are certain conditions on the use of the easement that have gone unfulfilled?

Where an easement is granted in exchange for an obligation that the easement holder perform some duty or give the servient estate some benefit, the easement may be terminated if the condition is not met, but only if the grant unambiguously gives the servient estate the right to terminate upon the failure of the obligation. For example, if AlphaCo granted an easement to BetaCo on the condition that BetaCo pays a portion of AlphaCo’s property taxes, and the grant gave AlphaCo an explicit termination right upon BetaCo’s non-performance, and BetaCo fails to pay those taxes, AlphaCo may terminate the easement. The key, however, is that the instrument must unambiguously state that the servient estate has the power to terminate the easement if the condition goes unfulfilled. In Gallagher v. Lederer, 102 N.E. 2d 272 (1st Dist. 1950), an Ohio court held that it will not read into the grant a right to terminate upon a failed condition unless the language in the grant clearly states such right. Furthermore, the failure to satisfy a condition must be deliberate and continued in order to trigger a termination right. Occasional inadvertent neglect will not be enough under Ohio law.

But the party that upholds its obligations under the express grant may always sue the non-performing party under a breach of contract theory. Several Ohio courts have held that the breach of an easement is analogous to a breach of a contract, and the non-breaching party may sue for damages or seek an injunction if damages are held to be insufficient.

What if the easement holder uses the easement for a purpose not stated in the grant?

If an easement holder attempts to enlarge, abuse, or misuse an easement, the typical remedy is injunction (i.e., the servient estate owner can get a court order forcing the dominant estate holder to stop misusing the easement). Misuse may also trigger a right to terminate an easement, however, if the misuse is excessive or substantial. Ohio courts have held that a slight change in use is not enough to trigger a right to terminate. See Cleveland v. Clifford, 2003 Ohio 1290 (9th Dist. 2003) (refusing to extinguish a “drive easement” where the easement holder used it to park cars).
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Creating and Terminating Public Rights-of-Way

The following article was prepared by John Murray, an associate attorney at Kohrman Jackson & Krantz P.L.L.:


If you are a landowner or prospective landowner, the presence of a public right-of-way on your land can have a significant impact on your rights and obligations in your property. In particular, rights-of-way can be a nuisance to a developer seeking to remove encumbrances on his or her land to make way for strategic developments. Consequently, it is important to understand how public rights-of-way are created and removed.


I. How is a Public Right-of-Way Created?

A public “right-of-way” is a portion of land dedicated to the public, such as a street, a highway, or an alley, for the purpose of allowing the public to pass through private property. Public rights-of-way can be created by following a formal procedure established by a municipality, county, or other local government. Alternatively, they may be created by a court’s determination that the public’s continual use of a portion of land coupled with the landowner’s intent that the portion be used by the public created a public right-of-way.

The formal process of dedicating land varies by each local government, but generally requires an official transfer of the portion of land to be used as the right-of-way in a deed or plat recorded and accepted by the local government. Failure to follow the specific process will result in a failed dedication. However, even if the formal process is not correctly followed, a landowner’s attempt to follow the procedures can demonstrate intent to dedicate a right-of way, and if the right-of-way is actually used by the public, a court may find that by common-law (i.e. a court order) a public-right of way has been created.

II. Once a Public Right-of-Way is Created, How Can It be Removed?

There are only two ways in which a dedicated right-of-way can lose its “public property” status: (1) vacation, and (2) abandonment. Similar to dedication, vacation is a formal process whereby the local government or a court declares a right-of-way vacated (i.e. removed). Once vacation proceedings have started, the vacation is not complete until a new plat is prepared and recorded in the office of the county recorder where the land is located showing that the right-of-way has been vacated.

Abandonment of a right-of-way is exactly what it sounds like. The municipality, county, or township stops using the right-of-way for its intended public purpose for an extended period of time. It must be noted that removing a public right-of-way through abandonment is a very uncertain process that is available only through court proceedings, and can often consume valuable time and resources. If a landowner wishes to remove a right-of-way, it is always best to follow the formal vacation procedures before turning to the principles of abandonment.

Ohio law will not apply the abandonment principles to remove a right-of-way unless evidence shows that the public stopped using the right-of-way for at least twenty-one years. But extended non-use alone is not enough to constitute abandonment. An additional element must exist for abandonment to have full vacating effect: the municipality must intend to abandon the right-of-way. Intent can be shown through statements made by local government representatives or other deliberate actions showing a desire to give up the right-of-way. In the 2001 case of Duggan v. Village of Put-In-Bay, an Ohio appellate court found that the Village of Put-In-Bay had abandoned an alley that cut across the private property of local business owners when the village failed to exercise any dominion over the alley since its formal dedication in 1925 (well exceeding the twenty-one year time limit). Evidence of intent to abandon the alley was found when, years earlier, the village entered into a dispute with a local historical society over the land in question and the village Mayor stated that the village should not be responsible for maintaining the alley because it never exercised control over the alley and the alley was not important to them.

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The presence of a right-of-way on your land can impact your rights and obligations as a landowner. By understanding how public rights-of-way are created and terminated, a savvy landowner or developer in purchasing, selling, or developing real estate can better evaluate his or her options.
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Caveat Easement Grantor (Grantors of Easements Beware)

An “easement” is the right to use the property of another for a specific purpose. Most common are drive/access easements and utility easements. While there are limited exceptions (e.g. easements by necessity; easements by prescription; and easements by estoppel), the vast majority of easements are created by separate written instruments (or are contained within deeds) and are recorded. Some easements are personal in nature and only apply while the current landowner owns the property, and others are “perpetual” and burden the land forever.


Easements will either spell out the specific rights to use the property granted to the easement “holder” (e.g. right to use the property to place above-ground or below ground electric lines), or be “blanket” in nature and not be limited as to use. Many easements will also contain restrictions which burden the land described as the “easement premises”. Because of the possibility of existing forever, and the severity of restrictions that may be contained within an easement document, one should never agree to an easement without an attorney reviewing same prior to signing.

The recent case of Ohio Edison Co. v. Wilkes, 2012-Ohio-2718 (7th Dist. Ct. of App., Mahoning Cty.) helps to reinforce the need to review easements carefully prior to signing same. The Wilkes case also demonstrates that a court’s interpretation of words in a legal document can be far different from “common meaning”.

The facts of Wilkes are simple enough. In 1949, a landowner prior to Wilkes granted an easement to Ohio Edison over part of his property for building and maintaining a high voltage electric transmission line. In 1977, the Wilkeses purchased the property and in 1993 built an above ground pool and storage shed. Fifteen years later, Ohio Edison demanded the structures be removed due to safety reasons. The Wilkeses refused, and Ohio Edison sued to enforce its written easement.

The Wilkes easement contained a restriction disallowing (and giving the electric co. the right to remove) obstructions to the easement. Typically, when we think of obstructions to an easement, we visualize someone planting a tree in the middle of an access way, or in other words, someone/something physically blocking the use of the easement.

The trial court and the appellate court, however agreed with Ohio Edison in that an obstruction can also be something that hinders or impedes; specifically, something that interferes with Ohio Edison’s right to operate electric lines in a safe and reliable manner. They reasoned that since electric lines may “arc”, within so many feet of the lines, the presence of a pool and structure within the “arc zone” render the easement premises (location of the lines on the property) obstructed.

The Wilkeses also argued that they have enjoyed the use of the pool and shed for over 15 years, and accordingly, Ohio Edison’s claim should be precluded by the legal defenses of “statute of limitations”, “laches” and “estoppel”. The 7th District Court of Appeals, however, applied legal precedent from a Sixth Circuit (federal) Court of Appeals case (Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618) that specifically held that those legal doctrines do not apply to an expressly granted easement.

Moral of this story? If someone comes to you with what they describe as a “simple form easement” or an easement with “typical boiler plate”, and asks you to sign first and ask questions later, turn and run to your friendly lawyer’s office. Easements and accompanying restrictions on the use of your property can live forever and present impediments to your ability to sell your property. While the owner of land that is subject to an easement has the right to use the land in any manner not inconsistent with the easement; that owner has no right to interfere with the reasonable and proper use of the easement or obstruct or interfere with the use of the easement.

CLE Updates: Upcoming Real Estate Educational Seminars

In one sign that the commercial real estate industry is coming back to life, the number of educational seminars on real estate topics is increasing.  Below is information regarding several upcoming seminars:

1.  The Ohio State Bar Association (OSBA) is sponsoring a Construction Law Forum on Wednesday, September 5, 2012 in Cleveland-live via simulcast (The Ritz Carlton, 1515 W. 3rd St., 44113) and Columbus--live and via webcast (OSBA offices, 1700 Lake Shore Drive, 43204). Click here to access the OSBA's seminars.

2.  Foxmoor Continuing Education is sponsoring a seminar titled "Ohio Easements: Rights of Way and Other Encumbrances" on Wednesday, September 19, 2012 in Columbus (Crowne Plaza Columbus North, 6500 Doubletree Ave.; 614-885-1885) and Thursday, September 20, 2012 in Cleveland (Hilton Garden Inn Cleveland Airport, 4900 Emerald Court SW, 44135; 216-898-1898).  Click here for  more information.

3.  National Business Institute (NBI) is sponsoring a seminar titled "Real Property Foreclosure: A Step By Step Workshop" on Tuesday, September 11, 2012 in Worthington (Holiday Inn Hotel Worthington, 7007 N. High St.; 614-436-0700) and on Wednesday October 3, 2012 in Cincinnati (The Phoenix, 812 Race St.; 513-721-8901).  Click here for more information on the seminar in Worthington and here for more information on the seminar in Cincinnati.

4.  NBI is also sponsoring a seminar titled "Title Law in Ohio" on Wednesday, September 12, 2012 in Cincinnati (Holiday Inn Eastgate, 4501 Eastgate Blvd., Cincinnati; 513-752-4400).  Click here for more information
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CLE Updates: Easements and Handling Real Estate Transactions

Below is information regarding two upcoming continuing education seminars on real estate issues:

Foxmoor Continuing Education is sponsoring an all day seminar titled "Ohio Easements: Rights of Way and Other Encumbrances" on September 19, 2012 (Wednesday) in Columbus, Ohio and on September 20, 2012 (Thursday) in Cleveland, Ohio. The featured speaker is Gary Kent and discussion will address, among other things, the definition, nature and elements of easements, written and unwritten easements, the scope, duration, interference and termination of easements.  Registration begins at 8:00 am and the seminar ends at 5:00 pm.  More information and registration is available online at http://www.foxmoor-ce.com/.

National Business Institute is sponsoring all day seminar titled "Handling Real Estate Transactions from Start to Finish" on August 7, 2012 (Tuesday) in Cleveland, Ohio.  Seminar attendees can learn the fundamentals of a real estate closing.  Registration begins at 8:30 am and the seminar ends at 4:30 pm.  More information and registration is available online at http://www.nbi-sems.com/.
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