What Liabilities Come with an Easement on My Commercial Property?

Easements on real property are not uncommon, and, typically speaking, they aren’t troublesome either. In the majority of easements, the right for another entity to legally use a property owner’s land for specific purposes isn’t a cause for fuss. However, there are some situations where an easement can put you in a predicament, particularly in the world of commercial real estate.


Easements and their uses vary widely on a case-to-case basis. An easement on your property may allow a utility company to enter your land for maintenance, which would generally not be considered problematic or adverse. Another common example may be an easement that allows a neighbor to enter and exit their property by way of your property. But while the easements themselves may not be problematic, incidents of liability could be a concern.


What Exactly Is an Easement?

An easement is, in basic terms, the legal right that enables the holder of the easement to use your property for specified and limited purposes. So, as with the neighbor example above, a neighbor who has no other way to gain access to their own property could use yours to enter and exit, but not for any other purposes.


Easement holders may not occupy land or conduct business on the property. They also cannot bar others from using the land unless the usage interferes directly with the easement holder’s own use. Additionally, the property owner cannot exclude the easement holder from their land if it is being used legally under the terms of the easement. While most easements are agreed upon, if another entity uses your property openly for an extended period, an easement by prescription may be created.


It’s also important to understand the differences between the dominant estate and the servient estate in an easement. The dominant estate is the parcel of real property that has an easement over another piece of property, and a servient estate is the land that is subject to the easement.


Who Is Liable for an Accident on an Easement?

It’s common knowledge that you can potentially be held liable for accidents that occur on your property, but if there is an easement, who is liable for an accident then? Unfortunately, the answer isn’t simple. At the end of the day, liability issues regarding easements often come down to the language used to address liability in the agreement.


Language in easement agreements is often unclear, in which case the intent of the involved parties may be taken into consideration. This would involve evaluating the circumstances that existed when the easement was first created. In this instance, it could be found that the easement was being used for a purpose not expressly outlined in the agreement, meaning that the dominant estate could have been in violation of the servient estate’s rights and would be liable. To put it more simply, if the easement agreement indicates that the dominant estate holder was involved in an incident whilst using the easement for purposes not outlined in the agreement, the servient estate holder cannot be held liable.


In the majority of instances, the holder of the easement (the party that benefits from the easement) is usually liable for hazardous situations caused by negligence that results in an incident. This also becomes murky, however, if both parties benefit from the easement and both parties were aware of any hazardous situations and made no steps to prevent an accident from occurring.


Alternatively, it’s common that the dominant estate holder is typically responsible for maintaining the easement area unless otherwise specified in the agreement. This means that the servient estate holder has no maintenance obligation, and the dominant estate holder may be held liable if an accident occurs.


Easements can be confusing and often span a gray legal area. When it comes to issues of liability related to an easement, there are often disputes amongst the parties involved. If you have questions or concerns about easements in commercial real estate, the professionals at Emerald Law are happy to help. We have extensive experience counseling business owners and entrepreneurs with a vast array of liability issues. For more information, contact us today.

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