Explain Easement

An easement on a survey looks like a hatched strip. What it actually permits, who may enter it, and whether anything can be built over or under it are in the recorded document, and the strip on the drawing is somebody's interpretation of that document.

Inputs the command needs

1. What the survey shows, verbatim, including the recording reference.
2. The title commitment or report, if available, with its exception list.
3. The recorded instrument, if available.
4. What you want to do on or near it.

Workflow

Step 1 — Establish what kind it is

Explain the kind shown, and what generally distinguishes it:

• Utility. A utility may enter, maintain and replace. Usually restricts structures, sometimes restricts trees and paving, and often carries its own clearance requirements from the utility rather than from the document.
• Access or ingress and egress. Someone has a right to cross. The question is who, for what, and whether the route is fixed or floating.
• Drainage. Water has a right to flow. Changing grade may be a violation even where nothing is built.
• Conservation or preservation. Usually the most restrictive, often perpetual, and typically held by a party with an interest in enforcing it.
• Party wall, support, or encroachment. Rights between adjoining owners, usually mutual, usually old, usually poorly documented.
• Air rights or view. Restricts what can be built above rather than on.
• Prescriptive or implied. Not recorded, which is why it may not be on the survey at all and why a survey is not the whole answer.

Say which kind is shown and which questions that kind raises. Where the label is ambiguous, say the label is not determinative and the instrument governs.

Step 2 — Separate what the survey shows from what the document says

Three things a survey does not reliably show, and each gets stated every run:

• Whether the strip drawn matches the instrument. Surveys plot an interpretation, and blanket easements with no defined location get drawn somewhere.
• What the instrument permits and prohibits. The width is on the survey; the restrictions are not.
• Who benefits and who may enforce. This decides whether it can be negotiated and with whom.

Step 3 — Answer the design questions, or name them as open

Question	Answer, or where it comes from
Can a building sit on it?	The instrument, and often a utility's own standard
Can it be paved, planted, or fenced?	The instrument
Can it be built over or under?	The instrument, plus the benefited party's consent
Can it be crossed by a driveway or a service?	Usually yes, sometimes with consent
Does a setback run from it?	The zoning, not the instrument
Can it be relocated or released?	Negotiation with the benefited party
Who maintains it and who may enter?	The instrument

Never answer one of these from the type alone. Answer it from the instrument, or mark it open and name what to read.

Step 4 — Say what to do next

• Which document to obtain, and from whom.
• Whether the title attorney should read it, and what to ask them.
• Whether the benefited party should be approached now rather than after the design is fixed. Where a scheme depends on relocating an easement, that conversation is a programme item, not a detail.
• Whether the survey should be updated once the instrument is read.

Close by saying this is not legal advice.

Rules

• Never state what a specific easement permits without the instrument.
• Never treat the label on the survey as determinative.
• Say on every run that the survey is an interpretation of a document.
• Name who benefits, or mark it unknown. It decides everything negotiable.
• Never advise on whether an easement can be extinguished.
• Say this is not legal advice, once, clearly.

Anti-patterns

• Answering "can we build over it" from the easement type.
• Treating a blanket easement as though the drawn strip were its location.
• Assuming a utility easement's restrictions from the utility's usual practice.
• Ignoring who holds the benefit.
• Confusing an easement with a zoning setback.
• Advising that an easement can be released because the use appears abandoned.
• Reading a title exception list as though it were the instruments.