North Carolina Eminent Domain Lawyers

Easement Issues

Is Your Easement Contract Giving Up More Than You Think?

Did you know that the permanent “utility” easement the government is asking you for allows them to do whatever they want with your property in the future? They may just want to run an unobtrusive utility line on a part of your property now. But they have also bought the right to install new utilities whenever and wherever on the easement they want! Consider the case of a client of ours.

NC Eminent Domain Law Firm client, Ferondo Moore, was about to sign a permanent utility easement contract giving the state permission to run some utility lines on a portion of his business property -- a Church's Chick drive thru. This Church's Chicken, incidentally, was going to be Mr. Moore's retirement next egg. Although the NCDOT assured Ferondo the easement would not affect his day to day operations, something made him hesitate, and he didn't sign the contract. Instead, he called a friend for advice who had been in a similar situation. His friend's advice was to call us. Mr. Moore confided that contacting us was one of the best decisions he had ever made. Turns out, the day to day operations of that drive through were affected. Very much so. That utility easement took away about half the parking spaces, causing a negative impact on his business. Attorney Jason Campbell took this case to trial, where he convinced a jury to make the NCDOT increase their original offer of less than $40,000 to more than $400,000. More than ten times the NCDOT's original offer. Disclaimer: each case is unique and must be evaluated on its own merits. The outcome of a particular case cannot be predicated upon a lawyer's or a law firm's past results.

Easements aren’t easy. And the contract language can be vague – this is on purpose in order to allow the condemning authority leeway to protect itself in the future. Consider Ferondo Moore’s case above.

Fully understanding easement terms and conditions is critical for two important reasons. The language will determine:

  • What happens to your property at any time in the future
  • How much you’re likely to be compensated, once and only once, for that potential scenario

What Easement Terms May Really Mean

The Two Types of Easements

Permanent Easements

A “permanent easement” means the condemning agency is not purchasing your land outright but is buying the rights to alter it and use it for their own purposes. These types of easements include utility, aerial utility, drainage, and slope easements.

While you still own the property, you are no longer allowed to use it in any way that would interfere with the easements. Further, if you build a fence, install a pool, plant landscaping, etc., in an easement area after the taking, the condemning agency wouldn’t have to pay you for these improvements if they subsequently destroy them per their legal use of the easement.

Temporary Easements (Rental of Land)

A “temporary easement” means the condemning agency is leasing a portion of your land for the length of time needed to complete the project. Generally, this is a temporary construction easement. You will get back full ownership of your land at the end of the project. However, it is sometimes hard to predict how long a project will take to complete. Will you be able to use your business parking lot? Or control who is in the front yard of your home? Will they give your land back in the same condition in which they found it? We’ve seen cases where ponds were left as empty bogs. An owner shouldn’t accept a low value for this easement just because it is temporary. A temporary easement that comes within a few feet of a home or business can be just as disruptive as a permanent easement hundreds of feet away.

What are the Types of Easement Takings?

Utility easement is one type of easement takings in NC eminent domain cases. Utility Easements

Utility easements are generally quite broad. You might be told that all the utilities are being run underground, and think that’s not a bad thing. But the government is legally allowed to change its mind later, dig up those underground lines, and replace them with aerial lines – cutting down that 200-year- old oak tree or forcing you to move a portion of your business parking lot.

That is why it’s important to pay attention to the specific language – real and implied. It could be that the condemning agency is only planning to install one utility now, but often the language of these easements allows them to come back and install gas, power, or phone and water lines too, without paying you any more for the use of the easement. The NCDOT may tell you that you can park on and drive under utility lines now. But they have the right to stop you from doing anything that affects their purposes for that easement any time in the future.

Drainage easement is another type of easement takings in NC eminent domain cases. Drainage Easements

A permanent drainage easement gives the government the right to alter and maintain your land in order to facilitate drainage of the project. This usually involves digging ditches, installing water pipes, and building retention ponds.

It’s important to know not only what the immediate planned use is, but also what the agency could legally use the easement for in the future. In the case of drainage easements, it may not seem all that important if the government is merely replacing the current pipe. But what if a 12-inch diameter pipe is being replaced with a 24-inch diameter pipe? This generally means more water, and that water has to go somewhere. Are there adequate plans for the runoff, or has the government just assumed it is ok for the extra runoff to drain onto/over your property? Are they filling a wetland, causing erosion or periodic flooding?

Again, what they could use the easement for later is also important. The government may never come back to your property to alter the drainage ditch/pipes, or it could be out there every year changing or altering the drainage area.

As long as those changes remain inside the easement area, there is generally no way to get more compensation for any inconvenience or damages.

Slope easement is one type of easement takings in NC eminent domain cases. Slope Easements

A slope easement gives authorities the right to alter and maintain the elevation of your property in the easement area. A slope easement might not generally come across as all that impactful at first glance. The condemning agency may state that it simply wants to raise or lower the level of the dirt in that area to accommodate a new road or sidewalk. But are they putting your property in a hole? Are driveways too steep for commercial and business traffic? Are you now perched on top of a freeway? The condemning agency can raise or lower that slope however it deems necessary to support the project at any time in the future. If the road is raised or lowered in the future, the government has the legal authority to change your slope easement again. And you may not get paid for subsequent alterations.

The extent of the easement is guided by the horizontal boundaries, not the elevation. Furthermore, if you alter the property in the slope easement area, and the structure for which the easement was taken is damaged, you could potentially be on the hook for some or all repair costs.

EMD4Construction Easements

Construction easements are temporary, so many owners don’t give them the full consideration they deserve. But think about it. How long is temporary? Is the condemning agency only going to be on your property for a month, or will it be working there for years?

And how does the easement affect the use of your remaining property? Is there a slope easement buried in the contract language? Plans may show a construction easement, but unless you know how to read NCDOT contracts, this information may not be apparent to you.

Construction easements are generally furthest from the road, and therefore closest to improvements on a property like your home or business. This area can be used to store materials needed for the project, and even the large equipment used to construct the project!

Would you want to come home one day to see a backhoe parked outside your home – for the next three years? Or have a construction storage and staging area placed at the front of your business?

Right of Ingress/Egress

Easements often include a right of ingress/egress, which means the condemning agency can use other parts of the property to reach the easement areas it needs to work on. It may not seem all that distressing to grant a power line easement 1000 feet from your home. But how would you feel coming home to large utility vehicles driving across your backyard to reach the power lines when they need to be maintained on a consistent basis?

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Property owners and the condemning agency often disagree on the value of these easements. For these reasons, easements may affect your property’s use and resale value, and should not be granted lightly.

That is why it is imperative that you not only read but understand the language – real and implied – in these easement contracts.

As a matter of fact, we do not recommend you sign anything until a qualified eminent domain attorney has reviewed the contract. We’ve seen too many people sign easement documents, only later to be frustrated, disappointed, and without the additional compensation, they could potentially have been awarded.

Let us try to help you as we’ve helped clients throughout North Carolina. It all starts with a FREE review of your case.