Easements – An Introduction
Easements are commonly used legal concepts in property law. They represent the intersection of the technical and the practical. In short, an easement is a right, distinct from ownership, to make limited use of another person’s property. The principal location for easements is the use of another property for a particular purpose. In Ohio, under sections 5301.05 – 5301.15 of the Ohio Revised Code, easements must be created in writing. While less formal, easements can be deemed abandoned if the dominant estate owner chooses to forgo its rights to use of the property.
In the world of real estate, easements present one of the more controversial concepts. When an easement exists there are clearly defined rights and obligations. However, when that easement expires or is terminated, ownership of the land is fully restored to the party who owned the land prior to the easement’s creation . Easements can occur by reservation, meaning that a grantor of land can retain an easement over the land sold. In this case the owner of the land subject to the easement (the servient estate) must allow the owner of the reserve easement (the dominant estate) to use the property for the purposes allowed by the easement. Alternatively, an appropriate grantor may convey an easement to another who is not the neighboring landowner. Often, an easement’s existence is invisible to the casual observer.
Easements can also be described as like a "bicycle on a bike rack: it is allowed to exist, but should the bicycle ever interfere with use of the bike rack, the bicycle may be removed without impacting the use of the bike rack as an entity." Unlike bicycles, however, easements such as that to obtain access to a driveway often will impact the value of a property.
Different Kinds of Ohio Easements
Ohio law recognizes three types of possible easements for driveways. First, an express easement is one granted by the express language in a written instrument. For example, if Lot A and Lot B are completely blocked off from Lot C, and there is no existing way for Lots A and B to get to the main county road, then the property owner on Lot C may grant the property owners of Lots A and B an express easement across his or her property, as long as the express easement is in writing and signed by the owner of Lot C.
The second type of possible easement is an implied easement, which arises when a parcel of land is divided in two, and one of the parcels has been using a driveway located on the other parcel. This use of the driveway must be continuous, permanent, obvious and necessary, and the property owner who was using the driveway must have been using the driveway from the beginning of ownership. Implied easements must benefit the whole parcel of land and not just a portion of the parcel.
The last type of possible driveway easement is a prescriptive easement. This is where the claimant for the easement has been using the driveway for at least 21 years in an open, adverse and continuous manner, and without any permission from the property owner of the land where the driveway is located. A civil action may be brought for the condemnation of such easement on or after the expiration of the 21 year period and the easement is terminated unless it is established within the required time period that such user was permissive.
How to Obtain an Easement in Ohio
Before any legal action is taken to remedy an Ohio Driveway Easement Law dispute, however, counsel for the party with the most interest in the subject matter should draft the full set of legal documents and then schedule a meeting with the other drive-way user. Ohio easement law states that the parties can often accept the proposed use of the easement if the other drive-way user utilizes it fairly. Because of their flexibility, Ohio drive-way easements often have some of the most disputes about what each party can do on the easement. These disputes often include where the driveway should be, how it is to be used, what vehicles can be on it and how much repair and maintenance each party must conduct.
If, after a reasonable time, an agreement cannot be reached between the parties, a party may file a request for an easement declaration with the Court of Common Pleas, or the court with subject matter jurisdiction. Once filed, the party will request a hearing date with the Clerk of Courts. Once the hearing and notice are received, the party can pick which judge the case will be assigned based on scheduling preferences. The party retaining counsel will then draft a motion for an order declaring a driveway easement, supply supporting documentation and affidavits of support and attach a proposed form of judgment entry granting the relief sought. Finally, once filed, it is necessary for the Register of Deeds to record the Declaration of Easement, which places the easement on public record.
Easement Holders’ Rights and Duties
Easement holders have the right to use the easement as provided for in the document granting the easement. There are no standard language provisions that apply to every easement, and each document must be read to determine what rights are conveyed. For your convenience, there is a separate blog post on driveway easement language.
One very important note is that the easement holder cannot do anything to materially change the burden on the land. Thus, an easement to cross property (for example, from your house to a road) does not include the right to park. It also does not include the right to run or walk on the property. The easement holder has the right to drive, ride, walk, run, bike and drive other vehicles over the property in the manner the easement allows and due to the property as described in the grant of easement.
Property owners – whether the holder of the easement or the owner of the underlying property – have a duty to keep the easement clear of obstructions. If the words of grant require the owner of the underlying property to keep the easement clear of any obstructions, a failure to do so allows the easement holder to demand that the other party remove such obstructions, or if that is not practicable, to remove them himself.
Occasionally, an easement will provide that the holder has the right to ask the other owner to move certain obstacles within the easement. Again, if the other owner cannot do so within a reasonable period of time after being properly notified, the holder of the easement may remove such obstacles without liability.
Dispute Resolution for Easement Situations
Disputes over Ohio driveway easements arise in one of several ways. One party complains about the scope of the easement asserting that it has been exceeded. The party with the easement claims that the use is appropriate under the terms of the grant. Another situation involves conflict over whether the easement holder has completely abandoned its rights. That determination often times requires assessment of the amount of time the use has ceased.
Frequently, people claim that they have not received proper notice of a plan to terminate the easement. Courts recognize two types of notice: (1) formal notice or (2) informal notice. The requirement of notice (informal or formal) is the result of the Supreme Court’s ruling in Smith v. Ohio Dept. of Transp., 115 Ohio St.3d 27, 2007-Ohio-3458, 873 N.E.2d 125 , which required a "suspected easement holder" to have prior notice of an intent to vacate the easement. The Court explained that a presumed grantee of an easement is required to pursue its interest and protect it from being eliminated because the property may not be used for a period of ten years.
A broader group of cases consider situations where the parties terminate the easement by mutual agreement. Courts are willing to enforce permits granted by the grantee so long as the easement is not in a public way. When considering an agreement that purports to terminate the easement, courts will examine the determining nature of the right.
Finally, there are those disputes that arise from actions of the easement holder that the owner believes has resulted in injury to the servient estate. In some cases the courts will admit evidence of an accident to recreational users. In all cases changes that can be perceived to interfere with the rights of the easement holder should be reviewed for compliance with the provisions of the granting clause.
Most disputes can be avoided by careful drafting of an easement that clearly spells out the rights of the parties and confines the use to the rights granted. Where a problem exists, it is important to seek the assistance of a lawyer familiar with easement issues.
Changing or Ending an Easement
Driveway easements can be modified. The "will or purpose of the parties" test is the standard for such a modification. Columbia Gas Transmission Corp. v. Kinsey, 90 Ohio St.3d 417, 735 N.E.2d 353 (2000). In the Kinsey case, the underlying servient estate was essentially junk land, with no access to a through street without crossing the driveway easement. The easement was transformed into an access easement. The Ohio Supreme Court upheld the trial court’s modification of the easement because the utility company had worked out with the neighboring property owner a way to get power to that property so the lightpoles on the back side of the property were no longer needed.
One bit of bad news is that if the driveway easement was created by a deed, then the owner of the fee estate cannot terminate the easement. That requires a reformation action to have the deed in question reformed by a court. Sometimes there are additional parties named as grantees in that original deed that need to be located and brought in to the lawsuit.
What about termination of driveway easements? These too can happen, but only under limited circumstances. A "typical driveway easement," as contrasted with an easement of necessity, is unilaterally terminable. Most commonly in that situation, the owner of the servient estate will record a quitclaim deed from the Grantee of the driveway easement back to the owner of the servient estate. The deed being recorded from the Grantee to the Grantor of the driveway easement transfers no title; it simply serves as notice to anyone who might want to use the driveway.
Alternatively, the property owner of the servient estate may be able to terminate the driveway easement unilaterally by making its own parallel driveway and closing off the previous driveway. For example, in Keller v. Aspy, 176 Ohio App. 3d 137, 892 N.E.2d 474 (1st Dist. 2008), a father and son owned adjoining properties. The son and his girlfriend built a new home on the father’s property, but built it closer to the neighbor such that the father’s driveway would need to be closed off. The father did not object and immediately vacated his property. His taxes went unpaid for over two years. After the father’s death, all four corners of the driveway were fenced off and the driveway was went over, as it was no longer needed for access. (The Father’s taxes were paid in full via a forced land sale action).
By contrast, when a driveway was needed to access a public road to create a "landlocked" parcel, the Ohio Supreme Court did not allow the servient estate owner to terminate the driveway easement by constructing a new road or by using another ingress/egress route – even when the owner of the driveway had effectively abandoned the easement. The Court held in that case that where a common fence was erected and maintained by both parties, the fence became property of freeholders. Collins v. Cox, 93 Ohio St. 301, 113 N.E. 239 (1916).
Case Examples and Other Precedent
Real-life case studies and precedents are invaluable in understanding Ohio driveway easement law, and they enable us to see how the principles and theories are applied in real situations. In Schwartz v. Tolley, for example, the court held that failure to maintain an easement is basis for termination of the easement. An easement may not be exercised in a manner so as to injure the owner of the fee. Where no definite width or boundaries for a right-of-way are reserved with certainty and particularity in the deed, it is to the entire tract of land, which the owner has the right to enter at any place or places thereon. In Weller v. Evans, the court addressed whether a granted easement is terminated by a subsequent sale of the property in which easement is located. The court said, when the owner of two or more tracts of land grants a right-of-way across one of them to the owner of the other and sells such tracts to different grantees, the grantee of the tract across which the right-of-way exists enjoys it as an appurtenance, and the grantee who did not own the tract when the easement was created takes the property subject to the easement. Likewise, where property is conveyed subject to an easement for the benefit of another property, the covenant for the title does not warrant against the easement, nor does it covenant against a subsequent conveyance of the dominant estate. In Tyndall v. Bridges, the court considered whether changing circumstances violates an easement. It found that except where the easement is terminated by express terms or by abandonment, a changing of conditions will not deprive the owner of such easement.
Final Take and Attorney Advice
As you can see, Ohio driveway easement law is a complex subject with no easy answers. Therefore, if you are facing a driveway easement situation in Ohio, I would recommend that you find an attorney with experience with these issues (and in particular , one that has litigated driveway easement issues because these cases can sometimes be hotly contested). Your attorney should be able to draft the easement deed to address your specific issue and the attorney may even be able to assist you if the other parties will not cooperate – though this may result in filing a lawsuit to have the easement formally created and avoid future issues. I also recommend that if you are in the position of facing a claim for trespass or interference with the driveway easement that you contact an attorney immediately to review your options and avoid having to file a counterclaim at a later date.