Making Easements Work for Current Conditions
Prepared and Presented by:
John C. Livingston, LEED® AP Kilpatrick Townsend & Stockton LLP
Legal and Practical Issues of Easements
I. Making Easements Work for Current Conditions
There are currently untold numbers of potential landmines in the public records across this country that could unnecessarily disrupt future development. These landmines take the form of easements that do not conform to current conditions. This paper discusses the issues created by these outdated easements and provides advice for resolving the issues that they create.
It is common for the nature of the use of an easement or for the nature of the use of a servient estate to change following the recording of an easement.1 An easement
originally granted for one purpose may not be sufficient for the needs of the easement
holder, or the needs of the servient estate may necessitate changes to the easement.
However, these needs for flexibility can run into a conflict with the rights granted or
reserved under existing easements, which when entered into did not or could not
contemplate these changes. For instance, easements granted in a residential context may
not be adequate if the development in the area becomes denser and includes a mixture of uses. Similarly, a utility easement granted when the servient estate was used as farmland may hinder later development for residential purposes. Another common situation arises when a perpetual conservation easement has been granted but the purposes of the
1 An artistic rendering of the development of downtown Charlotte can be found at http://vimeo.com/4360666. The video shows how uses in even an already urban environment can change over time. 1
easement have since changed; a problem that has resulted in at least one scholarly article advocating for a change in the nature of the perpetual conservation easement.2
Since most easements are perpetual, the increased development activities as we recover from the market downturn will result in more instances where the needs of the parties do not align with the easements granted and the need to effectively overcome these obstacles. While there may be some ability to anticipate changes, it will never be practicable or even possible to anticipate all future uses of the servient or dominant estate or the needs of an easement holder in changing development climates.
This section addresses a number of situations where there may be a conflict between an existing easement, as well as some common ways to make existing easements work for current conditions (i.e., diffuse the landmine), including the issues of (a) overburdening easements, (b) reserved rights for grantors, (c) amending or terminating easements with cooperating parties, and (d) amending or terminating easements with non- cooperating parties.
A. Overburdening Easements
One of the most common situations that creates tension between the existing easement and current conditions is the situation where the use of the dominant estate has changed to a more intensive use and the existing easement does not grant enough rights to the easement holder to allow for the new use. For instance, a farm may have access for vehicles over an easement of an adjoining property, but if the farm were converted into
2 Nancy A. McLaughlin, Rethinking the Perpetual Nature of Conservation Easements, 29 HARV. ENVTL. L. REV. 421 (2005). 2
single-family residences, the nature of the use of the easement has changed and
intensified (i.e., more vehicles will be accessing the dominant estate and utilities may
need to be installed).
Changing Use
North Carolina law supports the principal that once an easement has been
established, the easement holder may not change the use for which the easement was
created so as to materially increase the burden on the servient tract, and depending on the
circumstances, such an impermissible expansion of the easement rights may either be
subject to injunction or expose the easement holder to an action for damages.3
In Sparrow v. Dixie Leaf Tobacco Co., for example, a railroad company held an
easement to run a railroad line and related improvements across certain property. The
railroad company later entered into a lease with a tobacco company for conducting
tobacco storage and curing business adjacent to the railway. The railway company
apparently hoped that the proximity of the tobacco business to its line would naturally
lead to greater patronage of the rail line by the tobacco company. The Court found,
however, that the lease was not within the scope of the easement and was an
impermissible expansion of the easement right.4 If the easement holder makes an
unwarranted use of the land in excess of the easement rights held, such use will constitute
3 Sparrow v. Dixie Leaf Tobacco Co., 61 S.E.2d 700 (N.C. 1950); Powell v. Lash, 64 N.C. 456, 459 (1870) (“[E]very easement by prescription is an invasion of the rights of the owner of the servient tenement, and he is only estopped from claiming damages as to such injuries as he has quietly submitted to for twenty years.”); Moore v. Leveris, 495 S.E.2d 153 (N.C. Ct. App. 1998); Hundley v. Michael, 413 S.E.2d 296, 298 (N.C. Ct. App. 1992) (“[W]e note that an easement holder may not increase his use so as to increase the servitude or increase the burden upon the servient tenement.”); Bunn Lake Prop. Owners Assn., Inc. v. Setzer, 560 S.E.2d 576, 581 (N.C. Ct. App. 2002) (holding that once an easement is granted, “[T]he user of the easement may neither change the easement’s purpose, [n]or expand the easement’s dimensions.”). 4 Sparrow, 61 S.E.2d at 704. 3
a trespass and may be enjoined or result in an action for damages.5 These principals are
fundamental concepts in real estate law, generally followed throughout the country.6 In addition to the difficulties in determining the scope of an easement generally, determining the scope of an easement often depends on the manner in which the easement was created (for instance, written easements are likely more clear than easements where there is no written record).
Extension of Easement Rights
While easement rights are not unilaterally expandable by their holder, there is a somewhat countervailing principle that easement rights extend to all uses directly or incidentally conducive to the enjoyment of the easement.7 Courts have often permitted
uses that are “reasonably necessary for or convenient to” the operation of the principle
easement right.8
Courts generally hold that easement rights may develop to permit natural
evolution of its use, such as permitting automobile traffic where the easement was
originally used for horse drawn vehicles; however, changes will not be permitted when
they materially alter the burden on the servient tract. The question of whether the use of
an easement presents an unreasonable burden to the servient tract is one of fact.9 The
North Carolina Court of Appeals has taken a narrow view of the “incidental” expansion
of easement rights in the case of Moore v. Leveris, in which the Court held that the right
5 Id. See also Hales v. Atl. Coastline R.R. Co., 90 S.E. 11 (N.C. 1916). 6 See, e.g., Sampson v. Grooms, 230 Mont. 190, 748 P.2d 960, (1988), Breliant v. Preferred Equities Corp., 858 P.2d 1258 (Nev. 1993); Dennis v. French, 135 Vt. 77, 369 A.2d 1386 (1977). 7 See, Shingleton v. State, 133 S.E.2d 183, 187 (N.C. 1963); Hine v. Blumenthal, 80 S.E.2d 458 (N.C. 1954); City of Statesville v. Bowles, 169 S.E.2d 467 (N.C. Ct. App. 1969). 8 Sparrow, 61 S.E.2d at 703. 9 Grimes v. Power Co., 96 S.E.2d 713 (N.C. 1957). 4
to locate a neighborhood roadway did not include the right to place a sewer line through
the development under the roadway.10 In Swaim v. Simpson,11 the Court similarly ruled that an access easement to a residence did not permit the inclusion of utilities within a driveway.
Differentiating Permissible Extensions and Changing Uses
What constitutes an improper changing of use overburdening of an easement rather than a permissible extension is determined by courts based on the particular easement and the facts of the particular situation. The courts have established certain rules as to particular circumstances constituting an overburdening of an easement; for instance, giving rights to those who were not granted rights in the easement12 or the
extending of the easement to property not previously granted the easement right13 have
been held to overburden the easement. However, absent sets of facts that courts have
previously ruled on, it is not possible to determine hard and fast rules as to whether an
overburdening has occurred. Below are summaries of a few cases where the courts have
ruled as to whether an overburdening has occurred:
• In Bunn Lake Property Owner’s Assn., Inc. v. Setzer,14 the North Carolina Court
of Appeals found that an easement granting the right to an adjoining property
owner to use a lake owned by the property owners’ association for a boat and
fishing pier was overburdened by the construction of a sea wall, boat house,
concrete boat ramp, and screen porch.
10 Moore v. Leveris, 495 S.E.2d 153, 156 (N.C. Ct. App. 1998). 11 463 S.E.2d 785 (N.C. Ct. App. 1995), aff’d, 469 S.E.2d 553 (N.C. 1996). 12 See, e.g., Frost v. Robinson, 333 S.E.2d 319 (N.C. Ct. App. 1985). 13 See, e.g., Lovin v. Crisp, 243 S.E.2d 406 (N.C. Ct. App. 1978). 14 560 S.E.2d 576 (N.C. Ct. App. 2002). 5
• In Moore v. Leveris,15 the North Carolina Court of Appeals held that a “public
easement” for ingress and egress did not allow for the installation of a sewer line
by the dominant estate.
• In Sparrow v. Dixie Leaf Tobacco Co.,16 the North Carolina Supreme Court found
that a railroad had wide latitude to use a railroad easement for the facility of the
railroad but no right or authority to use or to let the property for private or
nonrailroad purposes.
These cases should be a concern to an easement holder that is looking to change the use of its property and is unclear whether an easement that is being relied on is sufficient to allow such change. An action to enjoin the use by an owner of a servient estate could delay and add costs to a development project, and, if the owner of the servient estate prevails, could prevent the development altogether. Additionally, the owner of the servient estate may have a claim for damages or extinguishment of the easement all together if the owner of the easement attempts to changes its use.
Other Courses
In addition to the question of uses allowed with respect to an easement, (i) the location and dimensions of an easement and (ii) whether an easement is exclusive or not are often in dispute. Under the doctrine of reasonable enjoyment, the dimensions of an easement, if not set forth in the easement itself, are established based on the purpose of
15 495 S.E.2d 153. 16 61 S.E.2d 700 (N.C. 1950). 6
the easement and the dimensions necessary to effectuate such purpose.17 If an easement
is not exclusive, the holder of the easement could be seen as overburdening the easement
if it prevents the use of the easement area by other easement holders or the owner of the
servient estate. Under North Carolina law an exclusive easement allows the owner of the
dominant estate to exclude other easement holders but does not allow the exclusion of the
owner of the servient estate absent language to the contrary in the easement.18
Actions of a Holder of an Easement
The holder of an easement that is contemplating a change in use and is relying on an easement for some aspect of the new development should closely review the existing easement to determine if the new uses are allowed. If the new uses are not allowed or if the easement is ambiguous as to whether the new uses are allowed, the owner of the holder of the easement should consider amending the easement as discussed below.
Actions of a Servient Estate Holder
A servient estate holder should monitor the uses made of any easements on its property and should take action to stop a use that would overburden the easement.
Failure to promptly end improper uses could lead to claims for an easement by prescription or estoppel of the right to prevent the use in the future.
17 11 STRONG’S NORTH CAROLINA INDEX 4TH Easements § 42 (2012) (citing Keener v. Arnold, 589 S.E.2d 731 (N.C. Ct. App. 2003)). 18 Hundley v. Michael, 413 S.E.2d 196 (N.C. Ct. App. 1992). 7
B. Rights Reserved to Grantors
Often, the owner of the servient estate will reserve certain rights for its use of an
easement area. Sometimes this is expressed as any right that does not interfere with the
use of the easement by the easement holder for the purposes provided in the easement;
however, the reserved rights might be more limited. In the case of specifically reserved
rights the issue is similar to an overburdening of an easement; the owner of the servient
estate must not perform a right in the easement area that is not reserved. With respect to
not interfering with the easement use, the servient estate must ensure that its use does not
prevent the right of an exercise of right. This is, in its essence, the opposite side of the
scope of the easement issue faced by the holder of an easement accused of overburdening
an easement.
Absent language to the contrary, the owner of the servient estate retains all rights
to use its property that are not inconsistent with the enjoyment of the easement.19 The
North Carolina Supreme Court has expressed this rule by stating that the “mere invasion
of an easement” is not actionable and the owner of the dominant estate has the burden of
proof of showing that the interference “injured his interests in some way.”20 In more than
one case, the North Carolina Supreme Court permitted the owner of the servient estate to place a gate and armed guard at the entrance to the easement to limit access rights across the easement drive.21 However, the gate cannot be used to prevent the use of the
19 Williams v. Abernathy, 402 S.E.2d 438 (N.C. Ct. App. 1991); City of Statesville v. Bowles, 169 S.E.2d 467, 471 (N.C. Ct. App. 1969) (“The respondent[] [fee owner] retain[s] the right to traverse it freely, to park on it, to landscape, to grade over it and to use it for any lawful purpose at such time and for so long as such uses do not conflict with the rights of the petitioner [easement holder].”). 20 Century Communications, Inc. v. Hous. Auth. of Wilson, 326 S.E.2d 261 (N.C. 1985). 21 Setzer v. Annas, 212 S.E.2d 154 (N.C. 1975); Shingleton v. State, 133 S.E.2d 183, 188 (N.C. 1963) (“Furthermore, the maintenance of the gate, even a locked gate, would not necessarily be inconsistent with 8
easement by the owner of the dominant estate. Of course, the ability to place these types
of rather pronounced limits on the holder’s access to the easement will depend on the
circumstances of the case. Such uses that do interfere with the easement rights can be
trespasses and give rise to the right to enjoin the trespass or monetary damages for the
diminution of value of the easement.
Relocation
One specific reserved right that is typically reserved is the right to relocate the
easement. In fact, in the absence of language to the contrary, the owner of the servient
estate has the right to initially locate the easement on the servient estate so long as such
owner acts reasonably and with due regard to the rights of the easement holder.22 If the owner of the servient estate fails to make such election or, in some instances, where the election of the servient estate is not feasible, the election may be made by the owner of the dominant estate with the requirement to take into consideration the interest and conveyance of the servient estate.23 However, there is no general right to relocate the easement after the initial location.24 This has been upheld even when an alternative
easement location is provided by the owner of the servient estate.25 Therefore, it is critical in the first instance to reserve the right to relocate the easement within the easement itself (it is often customary for the party relocating the easement to pay the costs associated with relocation).
plaintiff’s rights so long as the use of the road by himself and his agents, servants and employees, and licensees is not unreasonably interfered with thereby.”). 22 11 STRONG’S, supra note 17, § 43; MILTON R. FRIEDMAN & JAMES CHARLES SMITH, FRIEDMAN ON CONTRACTS AND CONVEYANCES OF REAL PROPERTY § 5.5 (6th ed. 2010). 23 11 STRONG’S, supra note 17, § 44; FRIEDMAN & SMITH, supra note 22, § 5.5. 24 Id. North Carolina follows the majority rule, but there is also a minority rule that allows a broader right to relocate to the servient estate embodied by court decisions in a few states and the Restatement of Property. 25 A. Perin Dev. Co., LLC v. Ty-Par Realty, Inc., 667 S.E.2d 324 (N.C. Ct. App. 2008). 9
A major problem for the owner of the servient estate arises when a blanket easement is granted when there is not a thought of development, but later development requires that the easement be moved to one side of the property to allow development of the remainder. The owner of the servient estate will want to ensure that its easement allows for relocation.
Another specific issue arises in the context an underground easement, where (i) it might not be clear where the actual underground infrastructure is located and (ii) there may be limitations on use of the above ground easement area based on the underground infrastructure. Where the easement cannot be located, many utility companies will enter into containment letters that contain easements to their actual location on the ground. An example containment letter is attached as Attachment A. This allows for development of areas outside of the easement area. However, within the easement area, the ability to develop is less clear.
For instance, many courts have held that installing buildings over an easement for a pipeline is inconsistent with the pipeline use and the owner of the dominant estate may remove buildings or trees over a pipeline easement area.26 The North Carolina Supreme
Court has held that a building could in certain circumstances be deemed to interfere with an underground easement for wires.27
26 FRIEDMAN & SMITH, supra note 22, § 5.6. 27 Century Communications, Inc. v. Hous. Auth. of Wilson, 326 S.E.2d 261 (N.C. 1985). 10
Negative Easements
A negative easement in which the servient estate does not grant any specific rights to a dominant estate but rather reserves rights in property other than with respect to certain rights ceded in the negative easement, such as a conservation, creates a unique problem. However, the question can be thought of as if rather than interfering with the rights granted to another party, the servient estate need not interfere with the rights that are intended to be preserved by the negative easement granted. For instance, the servient estate subject to a conservation easement may be restricted from developing the property in a manner that interferes with the conservation nature of the easement area.
Actions of an Easement Holder
The easement holder should monitor the uses made of any easement area in which it has an easement to ensure that it can both continue to use the easement as currently used and make any other use of the easement area allowed by the easement. Failure to object to interference with easement rights may lead to forfeiture.
Actions of the Owner of a Servient Estate
The owner of a servient estate that is contemplating a change in use should closely review the existing easement to determine if the new uses are allowed or would not interfere with the use of the easement by others. If the new uses are not allowed or if the easement is ambiguous as to whether the new uses are allowed, the owner of the servient tract should consider amending the easement as discussed below.
11
C. Amending or Terminating Easements with Cooperating Parties
In order to be able to fully use a servient estate (or the easement rights granted to an easement holder) in changed circumstances, it often becomes necessary to amend or even terminate the easement. When the other party to an easement is cooperating, this task is fairly straightforward. A written amendment or termination that is eventually recorded is the preferred method of amending or terminating an easement as it eliminates the ambiguities as to an oral agreement and is enforceable on future owners of the property once recorded.
The legal requirements for an amendment to an easement are the same as were discussed earlier in the day in order to create a new easement, namely:28
• Written instrument (such as a deed);29
• An adequate description of both the dominant and servient estates;30 and
• The ability to locate the actual easement.31
Additionally, an amendment would need to be recorded in the same manner of the original easement to give future owners of the servient estate notice that easement has been amended.
With any amendment, the party requesting the amendment will want to ensure that all of its requirements are met by the amendment and the party from whom the
28 JAMES A. WEBSTER, JR., PATRICK K. HETRICK & JAMES B. MCLAUGHLIN, JR., WEBSTER’S REAL ESTATE LAW IN NORTH CAROLINA § 15-9 (6th ed. 2011). 29 See, e.g., Singleton v. Haywood Electr. Membership Corp., 565 S.E.2d 234 (N.C. Ct. App. 2002). 30 See, e.g., Hinsley v. Ramsey, 199 S.E.2d 1 (N.C. 1973). 31 See, e.g., Thompson v. Umberger, 19 S.E.2d 484 (N.C. 1942). 12
request is made should ensure that it does not give up rights that it would later want to
use. Examples of an amendment to an easement and a termination of easement are
attached as Attachment B and Attachment C, respectively.
One subset of cooperating parties are public utilities, from whom it is difficult to
obtain a formal amendment or termination of an easement. Utility easements present
special challenges since the easement may be blanket in nature and the lines may be
underground and not visible.32 Utility companies, however, will typically enter into containment letters outlining the location of any installed utilities and limiting their easement to that area as discussed above.
D. Amending or Terminating Easements with Noncooperating Parties
Amending or terminating an easement with a party that is not cooperating is much
more difficult than amending an agreement with a cooperating party. In some instances
an easement will be deemed terminated even if the owner of the dominant estate is not
willing or able to execute a termination agreement. Specifically, easements will be
deemed terminated in the following events: (i) abandonment; (ii) occurrence or
nonoccurrence of stated event; (iii) adverse possession; (iv) change of conditions; (v)
merger; (vi) destruction of improvements; (vii) death of the holder of an easement in
gross; and (viii) termination by grant to innocent third-parties. However, courts are very
reluctant to use their equitable powers to amend an easement.
32 See generally, FRIEDMAN & SMITH, supra note 22, § 5.6, at 5-66. 13
Termination by Abandonment
The North Carolina Supreme Court in Moore v. Shore33 describes the rule that an easement may be terminated through abandonment by the owner of the dominant estate.34
The abandonment must be by an unequivocal act showing a clear intention on the part of the holder of the dominant tract to abandon the easement. The key here is an intent to abandon. Simple non-use of the easement is not enough to establish abandonment. In the case of Skvarla v. Park,35 the Court held that although an access easement across an alleyway had not been used in seventy years, no legal abandonment took place because there was no evidence on the record of an intent of the holder of the easement to affirmatively abandon the easement.36
The question of whether affirmative acts took place to affect abandonment is one of fact. The party wishing to establish abandonment has the burden of proof to demonstrate abandonment.37 Again, while non-use does not equal abandonment of easement rights, a long continued nonassertion of the easement right is clearly evidence of abandonment when coupled with other relevant facts.38
Termination by Expiration of Period of Time or Upon Event
Certain easements, such as temporary construction easements, are often created for a definite period of time. At the end of that period, the easement expires by its terms.
33 175 S.E. 117 (N.C. 1934) 34 11 STRONG’S, supra note 17, § 55. 35 303 S.E.2d 354 (N.C. Ct. App. 1983) 36 See also Horton v. Goodman, 315 S.E.2d 728 (N.C. Ct. App. 1984). 37 Skvarla 303 S.E.2d at 357; Fisher v. Carolina Southern R.R., 539 S.E.2d 337 (N.C. Ct. App. 2000). 38 See WEBSTER, HETRICK & MCLAUGHLIN, supra note 28, § 15-30. 14
Similarly, an easement right may be akin to a fee conveyance that is determinable
or subject to a condition subsequent. Once the triggering act occurs, the easement will
either automatically terminate as in a determinable fee or give the owner of the servient tract the right to re-enter to extinguish the easement.39 In Price v. Bunn,40 the easement
stated that if the grantee failed to use the rights and privileges of the property described in
an easement for a period of five years, the terms of the easement would become null and
void. Once such circumstances occurred, the Court found that the easement had expired
by its own terms because of the conditions stated on its face.41 It should be noted that a
recorded instrument is not needed to terminate an easement that is either determinable or
subject to a condition subsequent.42
Termination by Adverse User
In the same manner that an easement may be created by prescription, an easement
may be lost when the owner of the servient tract refuses to recognize the rights of the
easement holder and prevents the easement right for the requisite period of time.43 The
same elements that exist to create the easement by prescription would be applicable for
the servient owner’s termination of those rights. However, adverse possession may not
be available in some instances where the easement was dedicated to lot purchasers by
plat.44
39 See, Higdon v. Davis, 324 S.E.2d 5 (N.C. Ct. App. 1984); modified, 337 S.E.2d 543 (N.C. 1985). 40 187 S.E.2d 423 (N.C. Ct. App. 1972), 41 See also McDowell v. Blue Ridge & Atl. Ry. Co., 57 S.E. 520 (N.C. 1907). 42 Howell v. Clyde, 493 S.E.2d 323 (N.C. Ct. App. 1997). 43 See generally 11 STRONG’S, supra note 17, § 57. 44 Rice v. Randolph, 384 S.E.2d 295 (N.C. Ct. App. 1989). 15
Termination by Cessation of Purpose
Easements are generally not terminable based on a change of character of neighborhood,45 but an easement by necessity terminates upon the acquisition by the
owner of the dominant estate of an alternative means of access.46 A procurement of an
alternative means of access will result in the termination of such an easement. The
determination of whether the purpose ceased is a matter of fact that will require analysis
of the easement document itself to determine the specific purpose of easement and
whether that purpose has expired.
Termination by Merger of Estates
At such time as the dominant and servient estates become vested in the same
owner, the easement rights held in the dominant estate will merge into the fee ownership
and the easement will have no further effect. The legal concept is commonly expressed
as “One cannot have an easement over his own land.”47
Demolition of Improvements
Some states have held that easements relating to improvements (such as the
ability to use the lobby of a completed building granted to a neighboring building) are
terminated upon the destruction of the applicable improvement on the servient estate.48
45 Waldrop v. Town of Brevard, 62 S.E.2d 512 (N.C. 1950). 46 11 STRONG’S, supra note 17, § 58 (citing Joines v. Herman, 366 S.E.2d 606 (N.C. Ct. App. 1988). 47 FRIEDMAN & SMITH, supra note 22, § 5.7.2. 48 FRIEDMAN & SMITH, supra note 22, § 5.7.3. 16
Death of Holder of Easement in Gross
The death of a holder of an easement in gross terminates the easement absent
language in the easement to the contrary.49
Termination by Transfer to Innocent Third Party
When an easement has been created by express grant, but the grant has not been
recorded in a public registry, the easement may be terminated when the servient tract is
sold to a purchaser for value without notice.50
Other forms of easements may not be so easily terminated in this manner.
Easements which arise by implication or necessity, for example, are outside the
applicability of the recordation statute and will not be extinguished by a transfer of the
servient tract as described above.51
Conservation Easements
Of special concerns are the effects of perpetual easements granted to the public or non-profits as conservation easements. As ecology and development patterns change over time, the benefit of particular conservation easements can change. For instance, an easement may protect land that becomes an island in an otherwise densely populated area as the area continues to develop, and the land could objectively better be used for a non-
conservation purpose; or property could protect the habitat for an endangered species that later recovers in number or be used for a greenway that gets replaced by a newer path.
49 See WEBSTER, HETRICK & MCLAUGHLIN, supra note 28, § 15-3. 50 See N.C. GEN .STAT. § 47-18 (2011). See also Davis v. Robinson, 127 S.E. 697 (N.C. 1925). 51 See WEBSTER, HETRICK & MCLAUGHLIN, supra note 28, § 15-34. 17
Given the nature of the easement, adverse possession is not an appropriate method for regaining title and the public agency or charity to which the easement was granted may not have an adequate interest in the property to take the effort to change the easement.
There is no practical way to deal with conservation easements under current law; however, as more and more conservation easements are created and age, this will be a societal issue that will require a common law or statutory solution.52
E. Conclusion
Remaining vigilant for potential landmines created by outdated easements and having the tools available to diffuse those landmines can be critical in ensuring a development’s success.
52 For a discussion of the issue of amending or terminating conservation easements generally, see McLaughlin, supra note 2. 18
ATTACHMENT A
A-1
A-2
ATTACHMENT B
Prepared by and after recording hold for: Kilpatrick Townsend Stockton LLP (JCL) 4208 Six Forks Road, Suite 1400 Raleigh, NC 27609
NORTH CAROLINA ) DURHAM COUNTY )
FIRST AMENDMENT TO EASEMENT AGREEMENT
THIS FIRST AMENDMENT TO EASEMENT AGREEMENT (“Amendment”) is made and entered into as of the ___ day of ____, 201__ (the “Effective Date”) between ______PROPERTIES, L.P., a North Carolina limited partnership (“Buyer”) and ______, INC., a Delaware corporation (“Seller”).
WITNESSETH
WHEREAS, Buyer and Seller entered into that certain Easement Agreement (“Easement”) dated as of the ____ of ______, 1997;
WHEREAS, Buyer and Seller desire to amend the Easement by the execution of this Amendment in connection with the purchase by Buyer of certain property of Seller pursuant to a separate agreement.
NOW, THEREFORE, in consideration of the premises, the covenants and agreements hereunder set forth and in furtherance of the parties understanding, it is agreed as follows:
1. Effectiveness. This Amendment shall be effective as of the date of this Amendment.
2. Definitions. Any capitalized words or phrases used and not defined in this Amendment shall have the meanings ascribed to them in the Easement.
3. Roadway. The parties intend to re-configure the Roadway as described in Paragraph 1 of the Easement. Buyer has elected to exercise the option as to Option Parcel 1 and shall use reasonable efforts to gain municipal approval for the realignment of the Roadway to be as shown in the Easement as the Potential ROW Realignment. At Buyer’s request, Seller shall exchange with the City of Durham or such other appropriate governmental authority the property shown on Exhibit A as “Parcel B” for the property labeled as “Parcel A,” in order to effect the road realignment; provided Buyer exchanges such other property as required to effect the straightening of the Roadway. The costs of platting and governmental approvals (including subdivision approvals), and all costs of these transactions (except for Seller’s attorneys’ fees) shall be Buyer’s responsibility.
4. Sewer Easement Relocation. In connection with realignment of the Roadway as described above, the sewer easement currently located in the right of way of the Roadway as it is currently aligned will be dedicated by each of Buyer and Seller over those portions of the Buyer’s property and Seller’s property through which it crosses. The parties understand that the sewer line is currently located in a public right of way of the Roadway, but with the realignment of the Roadway, the easement will be located, in part, outside the right of way and require dedication. The cost of preparing the dedication plat, coordinating approval of the plat, and coordinating
B-1
municipal acceptance of the easement dedication, as well as other costs shall be the Buyer’s responsibility.
5. Exhibits. All Exhibits attached hereto are hereby incorporated herein and made a part hereof.
6. Continued Effect of Easement. All provisions of the Easement, except as modified by this Amendment, shall remain in full force and affect and are reaffirmed.
7. Conflict. In the event of any conflict, inconsistency, or incongruity between any provision of this Amendment and any provision of the Easement, the provisions of this Amendment shall govern and control.
8. Execution in Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one instrument.
9. Severability. Invalidation of any of the provisions contained in this Amendment, or of the application thereof to any person by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other person and the same shall remain in full force and effect.
10. Governing Law. This Amendment shall be governed by the laws of the State of North Carolina.
11. Entire Agreement. This Amendment, together with the Easement, constitutes the entire agreement between the Buyer and Seller pertaining to the subject matter of this Amendment, and may be amended only by a writing executed by Buyer and Seller.
12. Survival. The parties’ obligations and covenants contained herein shall specifically survive Closing.
Remainder of This Page Intentionally Left Blank - Signature Page Attached Hereto and Incorporated Herein by Reference
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed under Seal effective as of the day and year first above written.
BUYER: ______PROPERTIES, L.P., a North Carolina limited partnership (SEAL)
By: ______, Inc., General partner
By: Its: Name:
ATTEST
By: Its: Name:
(Corporate Seal)
SELLER: ______, INC., a Delaware corporation
By: Its: Name:
ATTEST
By: Its: Name:
(Corporate Seal)
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ATTACHMENT C
Prepared by and after recording hold for: Kilpatrick Stockton LLP (JCL) 4208 Six Forks Road, Suite 1400 Raleigh, NC 27609
NORTH CAROLINA ) TERMINATION OF TEMPORARY WAKE COUNTY ) CONSTRUCTION EASEMENT
THIS TERMINATION OF TEMPORARY CONSTRUCTION EASEMENT is made and entered into this ___ day of ______, 20____ by , a Delaware limited liability company ("Developer") for the benefit of LLC, a North Carolina limited liability company, as successor-in-interest to , INC., a North Carolina corporation ("Utility").
W I T N E S S E T H:
WHEREAS, Utility and Developer heretofore entered into that certain Temporary Construction Easement dated __, _____ and recorded in Book ______Page ______of the Wake County Registry (hereinafter referred to as the "Easement"); and
WHEREAS, Utility has requested Developer to deliver and execute this termination pursuant to Section 10 of the Easement, and Developer has agreed to do so; and
NOW, THEREFORE, Developer, for good and valuable consideration, the receipt of which is hereby acknowledged, does hereby terminate, remise and release the Easement and the rights created thereby.
TO HAVE AND TO HOLD the lands and premises, together with all privileges and appurtenances thereto belonging to them, Utility and their heirs, successors and assigns, free and discharged from the operation of the Easement forever.
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IN TESTIMONY WHEREOF, Developer has hereunto set its hand this the day and year first above written.
DEVELOPER:
Developer, LLC, a Delaware limited liability company
By: ______, its Manager
By: ______, Inc., its General Partner
By: Name: ______Title: ______
STATE OF ______COUNTY OF ______
I, the undersigned, a Notary Public of the County and State aforesaid, certify that the following person(s) personally appeared before me this day, and I have personal knowledge of the identity of the principal(s) I have seen satisfactory evidence of the principal’s identity, by a current state or federal identification with the principal’s photograph in the form of a
A credible witness has sworn to the identity of the principal(s); each acknowledging to me that he or she voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated: Name Capacity ______
Date: , Notary Public (print name)
(official seal) My commission expires:
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