What Is An Agricultural Conservation Easement?
An agricultural conservation easement is a legal agreement between a landowner and a land trust or government agency that permanently limits uses of the land in order to protect its conservation values.
Agricultural conservation easements are one of the most powerful tools available to farmers and ranchers for protecting their land from development and ensuring that it will remain available for agriculture in the future.
The purpose of an agricultural conservation easement is to preserve the habitat for a certain type of animal or plant; protect unique historic value; maintain the quality of air, water and soil; and/or reduce pollution in that area.
This type of easement does not provide full rights-of-way across private property. However, it does come with many responsibilities. Subject to the terms and conditions of the easement, the holder of the conservation easement must allow for a specified public access to the area.
The holder of an agricultural conservation easement may also be required to restrict what kinds of activities can be conducted on the land. For example, if a farmer has a contract with a utility company that provides electricity to his farm, then he may not allow any other person or company to use his power lines for profit.
What Removes An Easement By Necessity?
An easement by necessity is created when two pieces of land are landlocked, meaning there is no way to access the land other than through the adjoining property. An easement by necessity exists only as long as it is necessary, meaning it is extinguished once the land is no longer landlocked.
An easement by necessity can be removed in one of two ways: through an agreement between the parties or through a court order.
For example, if a highway is moved, then there is no longer any need for an easement; or if a right-of-way was created to provide a water source to a farmer, but the farmer now has access to city water.
Then it would be impossible for him or her to continue maintaining their rights by utilizing the original right of way; therefore, the easement would be removed.
Do I Need A Lawyer For An Easement?
Lawyers are always recommended when entering into a contract, but especially when it involves the transfer of an easement. It is a good idea to consult a lawyer before entering into any agreements or contracts.
It is a good idea to consult one if you are not sure of your rights and responsibilities; or if there is someone who is violating the contractual rights granted under an easement’s terms. An easement lawyer will be able to help you figure out if the right-of-way has been removed.
Determine why it was created, work with you to ensure that you are upholding your end of the contract; and offer you advice so that you may protect yourself against any potential problems that might arise as a result of your contract.
An attorney can help negotiate an easement with the landowner, provide for legal representation during the consultation process, check for any technicalities that might be overlooked in the easement agreement and offer advice on how to go about enforcing the easement,
An attorney may also be able to draft a will, trust or other legal documents to help transfer an easement.
However, it is definitely necessary in order to understand the legal documents that you are being asked to sign and the obligations that you are signing yourself up for. If you are not sure, then it is definitely the best option to consult a lawyer.
Does A Prescriptive Easement Need To Be Registered?
Yes, and there are many times when a prescriptive easement needs to be recorded. This can only happen after expiration or when an agreement has expired and is no longer in effect.
A prescriptive easement must be registered before it expires; otherwise, it will revert back to the landowner and become subject to law enforcement of all laws that apply to private property.
For example, if a road is created that was never added to a deed, then it is presumed to be an easement granted by necessity (and therefore not protected by law).
However, a prescriptive easement can be registered when the holder of the easement gets around to doing so; and it can also be recorded if someone is entitled to use the right-of-way, but has not yet taken advantage of all those rights.
How Close Can You Build To A Pipeline Easement?
In California, pipelines are treated as public highways and this means that the easements are quite close to all other public rights-of-way, therefore it is not at all unusual for a pipeline easement to be anywhere from 10 to 200 feet from other public rights-of-way.
There are many other states where pipelines, power lines and other utility lines are considered public highway property; therefore, it is best to consult a lawyer in those states before attempting to build close to a pipeline easement.
There is no specific distance that must be kept from a pipeline easement; however, the holder of a prescriptive easement that is less than five feet from such easement cannot take advantage of their rights.
Pipeline Easement is an easement by necessity. If a person or company builds an oil pipeline across private property that has an easement by necessity, then they are required to provide for a certain amount of space for the construction of the pipeline, as well as for maintenance.
However, in most cases, this is not always possible because of the sheer size and length of the pipeline.
What Is A Perpetual Easement?
Perpetual means always or having the power to do something permanently and continuously; therefore, an easement that has been granted for a specific time period is a perpetual easement.
However, it is possible that the holder of a perpetual easement can later take advantage of their right by building on, maintaining and using the right-of-way that was granted to them.
This type of agreement is most common when a landowner does not want to be bothered with anyone changing their access point for years or even decades down the road.
An easement by necessity can become perpetual; however, this only occurs when the holder of that easement can prove to a court that they have continuously used the right-of-way for a long period of time.
An easement is normally granted in perpetuity (or forever); however, if it is not officially endorsed as perpetual, then it can expire at any time.
An example of this would be an easement granted for a specific time period of three hundred years. An easement that can be repeated as many times as needed, for whatever period of time is also considered to be perpetual.
For example, the right-of-way that allows a utility company to access properties in order to work on their equipment is treated as a perpetual easement, unless otherwise specified in the contract or agreement.
What Is Misuse Of An Easement?
Misuse of an easement is when a person or company uses the right-of-way in a manner that was not originally intended, as outlined in the property contract or agreement.
For example, the right-of-way only gives permission to cross private land, but not to do any work on the land.
For example, building a house, then this would be considered a misuse; or if the property owner allows another person or company to use their pipeline easement as a road, then this would be considered a misuse of the easement.
What Is The Difference Between An Easement And A Shared Driveway?
Easements must always be granted by necessity; therefore the holder of an easement must be entitled to use the right-of-way.
For example, if an intruding landowner is given a driveway by necessity, then he or she can use that driveway for any purpose that might be necessary for the health and safety of themselves and their family.
Whereas, shared driveways are not protected by law unless they were written into the property deed or contract; therefore, they must be taken care of in the same manner as any other private, non-easement driveway.
For example, a shared driveway must always be kept clear of snow and ice; it must be well-maintained; and it cannot be used for other purposes that are not necessary for the health safety and welfare of the property owners or occupants.
What Is The Difference Between An Easement And An Encroachment?
One of the primary differences between an easement and an encroachment is that the holder of an easement uses a right-of-way for something that is necessary, for example, a power line, water pipes or sewage lines.
Whereas, the holder of an encroachment does not need to use a right-of-way at all (for example, when someone builds a fence on someone else’s land or when a tree grows on private property but shades that land.
An easement is a right-of-way that must be legally given by necessity; whereas, an encroachment is a right-of-way that is obtained by power of law, either by force or legal instrument;
for example, by deed or grant; or by taking or purchasing the land; or by building a structure on the property and claiming ownership over it, thereby creating an easement; but not all easements have been granted by power of law.
Do Cable Companies Have Easement Rights?
Many cable companies have easement rights over their property; these are not considered to be easements by necessity. Rather, they are considered to be rights of access or easements for the purpose of installing or maintaining cable facilities on the property.
For example, the right-of-way for cable television and Internet companies are not considered to be easements by necessity, because the cable companies are not using those right-of-ways for personal health and safety; rather, they are just using the right-of-way to do their work.
Therefore, the property owners can use those right-of-ways for any purpose that does not interfere with the cable companies’ work.