Minnesota Easement

Minnesota Easement

Minnesota Easement

The Minnesota Supreme Court has defined the word easement to be:

an interest in land possessed by another

  • which entitles the grantee of the interest
  • to a limited use or enjoyment of that land.

Larson v. State, 790 N.W.2d 700, 704 (Minn. 2010) (quoting Scherger, 575 N.W.2d at 580).

However, the term easement can also be used to identify:

  • the document which creates an interest in land possessed by another, or
  • the area of land in which the easement rights have been created.

Easement – Defined

An easement is a non possessory interest in the land of another person.

Easement – Right of Entry

An easement represents the right of a person to enter the land of another person, in order to use such land for a limited purpose.

Easement – Uses

An easement is commonly used to provide for:

  • a driveway or a right of access;
  • a highway or a public road;
  • a party wall;
  • access to a body of water for recreational purposes;
  • an encroachment – for a building, driveway, well, or sewer system;
  • an advertising sign;
  • a telecommunication tower;
  • a water drainage right;
  • the parking of motor vehicles;
  • access to light and air; and
  • various other activities.

A Minnesota easement can be used for many purposes, and is suitable for solving a variety of real estate problems.

Easement – Parties

(i)      Appurtenant Easements

There are at least two parties who are involved with respect to an “appurtenant” easement:

  1. the dominant estate, or the benefited parcel – the owners of which are the parties who are able to enjoy the benefits of the easement; and
  2. the servient estate, or the burdened parcel – the owners of which own the land upon which the easement is located, and which is burdened by the easement.

(ii)     Non-Appurtenant Easements

There are also at least two parties who are involved with respect to a “non-appurtenant” easement:

  1. the party who is authorized to enjoy the benefits of the easement – even without ownership of any adjoining real property; and
  2. the servient estate, or the burdened parcel – the owners of which own the land upon which the easement is located, and which is burdened by the easement.

(iii)    Required Parties

Regardless of the type of easement, all parties holding interests which would be burdened by the terms of a Minnesota easement must join in the easement document – such as:

  • co-owners,
  • spouses,
  • certain tenants, and
  • mortgage holders.

Easement – Right-of-way

An easement for right-of-way purposes would typically provide:

  • the owners of the benefited parcels, or
  • sometimes the entire public,

with the right to pass over or cross the burdened parcel.

Easement Area

A primary component in a well drafted easement is a proper legal description for the easement area.

In almost all situations, a licensed Minnesota surveyor should be retained in order to identify the legal description of the easement area.

Blanket Easements

An easement which covers the entire burdened parcel is known as a blanket easement – which is generally not advisable because it burdens the entire parcel.

Easements – Written

An easement must be in writing in order to satisfy the requirements of the Statute of Frauds – a legal concept which may be satisfied when:

  • the intention of identified parties is properly expressed in the easement document, and
  • the property subject to the easement is properly described.

Easement – Words of Creation

While no magic words may be necessary in order to create an easement – other than perhaps the word easement – the particular language granting the easement must properly evidence an intention to create an easement.

Easement – Recording

Since an easement is an interest in real property, it would be best if the easement document is recorded in the County real estate records against both the burdened parcel, and the benefited parcel.

With respect to Minnesota registered property, the Minnesota easement document should be properly filed and memorialized on all certificates of title which are affected by the easement.

Easement – Running with the Land

Recorded documents which identify an easement should declare whether such an easement will:

  • “run with the land”, and
  • continue to subject the burdened parcel, and benefit the benefited parcel,

After the current owners of such interests either die, or otherwise convey their ownership interests.

In 1940, the Minnesota Supreme Court declared that an easement will run with the land if the purchaser of land subject to an easement has either actual, constructive, or implied notice that the property is burdened with the easement.

Huhn v. Ryan, 208 Minn. 128, 293 N.W. 138 (1940)

Easement – Purposes and Duration

A well drafted easement should identify:

  • the purposes of the easement, and
  • the duration of the easement – whether perpetual or some shorter time period.

Easement – Exclusive Rights

Easement agreements should identify whether the benefited parcel has been granted exclusive rights to use the easement area located on the burdened parcel.

Minnesota Easement – Non-Exclusive Rights

A Minnesota easement may be non-exclusive, in which case the grantor of the easement may want to retain the right to use the easement area.

However,  when an easement is to be non-exclusive, the intended beneficiary of the easement may want to limit the ability of the grantor of the easement to allow additional parties to use the burdened easement area.

Easement – Duty to Maintain the Easement Area

An easement agreement should identify:

  • the parties having a responsibility to maintain the easement area on the burdened estate, and
  • the manner in which the cost of such maintenance expenses will be allocated among the parties.

Minnesota Easement – Documents

The greatest flexibility and certainty of result with respect to a Minnesota easement will arise pursuant to the execution of an express easement document – whether such document takes the form of:

  • an express easement agreement,
  • a declaration of easement, or
  • a deed of easement.

However, an easement may also be created by:

  • judicial order,
  • mortgage deed, or
  • Will.

Easement – By Implication

An easement can be created without the use of any easement document – such as:

  • an easement by implication,
  • also known as an easement of necessity,

which can arise:

  • in favor of the purchaser of a land-locked parcel,
  • over the retained real property of the deed grantor.

(i)      Actual Necessity is Required

The doctrine of easement by implication is based upon the principle that a conveyance of real property should include all necessary access to the property – the lack of which would make the real property unusable.

However, any claimed Minnesota easement by implication must actually be necessary.

Mere inconvenience to the purchaser by reason of not having the benefit of the claimed easement will be insufficient to establish a Minnesota easement by implication.

(ii)     Current Ownership is Required

A Minnesota easement by implication cannot exist without the prior common ownership of the burdened parcel – and the benefited parcel – immediately prior to the severance of the two estates which created the necessary easement.

Therefore, a Minnesota easement by implication cannot be claimed over real property owned by third parties when such third parties had no ownership interest in the title originally held by the selling real property owner.

Easement – By Prescription

Another easement which can be created without the use of any easement documents is an easement by prescription – which is obtained by satisfying many of the requirements established by the doctrine of adverse possession.

Certain of the statutory and common law elements of adverse possession – including a 15-year continuous use requirement – must be satisfied in order to claim an easement by prescription.

Nevertheless, the acquisition of a prescriptive right-of-way easement would not preclude use of the easement area:

  • by the general public, or
  • by the owner of the burdened parcel.

Easement – Termination

A Minnesota easement may either:

  • terminate without any action of the parties, or
  • be subject to termination upon the occurrence of certain events,

for a variety of reasons, including:

  • Completion of the stated duration of the easement – as identified in the easement document;
  • Completion of the particular purpose of the easement – as identified in the easement document;
  • The acquisition of the burdened parcel and the benefited parcel by the same owner;
  • The acquisition of the burdened parcel by a government agency pursuant to eminent domain (condemnation);
  • The abandonment of the easement by the owner of the benefited parcel;
  • The loss of the easement pursuant to adverse possession;
  • The ongoing lack of necessity with respect to an easement by implication; or
  • Pursuant to an express agreement to terminate the easement – which agreement must be in writing in order to satisfy Statute of Frauds requirements.

Appurtenant Easements

A Minnesota easement which is created in order to benefit an identified tract of land is known as an “appurtenant easement.”

Transfers of Appurtenant Easement

Unless prohibited by the terms of the easement document, a Minnesota appurtenant easement  is transferred together with the benefited parcel, even if the appurtenant easement is not specifically identified in the transfer document.

A grantee of the benefited parcel in a deed of conveyance is entitled to enjoy any Minnesota easement appurtenant thereto, unless the instrument transferring the burdened parcel expressly provides that the Minnesota easement appurtenant shall not pass to the grantee – in which case the easement will be deemed to have been extinguished.

Minnesota case law generally provides that easement rights will be transferred even when the instrument conveying the benefited parcel – such as a warranty deed, quit claim deed, mortgage deed or other document fails to:

  • identify the easement, or
  • Contain certain comprehensive transfer of appurtenances language.

Easements in Gross

A Minnesota easement which is not appurtenant to a second parcel of land is referred to as an easement in gross – which will benefit the holder of the easement whether or not such holder owns or possesses any real property related to the easement.

A Minnesota easement in gross is typically held for commercial purposes – and only commercial Minnesota easements in gross are transferable by the holder of the easement.

However, a Minnesota easement in gross can be acquired either by prescription, or by implication.

Minnesota Easement – Utilities

A common Minnesota easement in gross is a utility easement.

Minnesota Easement – Express Easements

The minimum terms required to create a Minnesota easement by express grant are:

  • an identification of the real property subject to the easement, and
  • an expression of intent by the parties creating the easement.

Minnesota Easement – Terms of Express Easements

When the terms of a Minnesota easement by express grant are unambiguous, such terms will generally be given their plain meaning.

However, when the terms of a Minnesota easement by express grant is ambiguous, Minnesota courts may take into consideration extrinsic evidence in order to discern the intent of the parties regarding the scope of the easement.

Minnesota Easement – Remedies

In addition to granting easement rights, a Minnesota Easement may:

  • impose certain obligations on the holder of the benefited parcel who is entitled to enjoy the easement, and
  • identify certain consequences if such obligations are not satisfied.

Common Types of Minnesota Easements

While Minnesota Easements can be used for a variety of purposes, some of the more common types of Minnesota Easements include the following:

  1. Right-of-way easements;
  1. Access Easements;
  1. Utility Easements;
  1. Encroachment Easements; and
  1. Conservation Easements.

(i)      Minnesota Easements – Right-of-way Easements

A Minnesota right-of-way easement gives the owner of the easement the right to pass over, or go across, the land of another person.

Federal and Minnesota highways, and railroad routes, are examples of Minnesota right-of-way easements.

(ii)     Minnesota Easements – Access Easements

Minnesota Easements can be used to provide access to certain real property pursuant to a driveway, or a private road.

If a part of your existing driveway is located on your neighbor’s real property, you may want to get a driveway easement from your neighbor – which will allow you to keep using the existing driveway to get to your property.

Minnesota Easements can also be used to provide access to a lake or other body of water from a parcel of land which is otherwise without such access.

(iii)    Minnesota Easements – Utility Easements

Minnesota Easements can be used to provide a utility company with the right to lay its transmission lines, utility lines, or pipelines – such as for water, gas, sewer, or electric – across certain real property.

Many platted city lots have dedicated easements for public utilities which are located near the borders of such platted lots.

However, many utility companies have “blanket easements” over the entire parcel – which have not been properly limited to a specified area – and therefore create marketability problems for the real property.

The solution for such blanket easements is to have the utility company properly define the location of its utility easement in a recordable document.

(iv)    Minnesota Easements – Encroachments

Minnesota Easements can be used to allow the continued encroachment of structures, water wells, and septic systems which are improperly located on a neighboring property.

If a part of your garage is located on your neighbor’s real property, you may want to get an encroachment easement from your neighbor which will allow you to keep your garage in its present location.

Likewise, if your water well or septic system is either partially, or completely located on your neighbor’s real property, you may want to get an encroachment easement from your neighbor which will allow you to keep your water well or septic system in its present location.

Minnesota Easements – Classifications

There are two broad classifications of Minnesota Easements:

  1. Easements in Gross

An easement in gross is an easement granted for the benefit of a particular individual or company – typically a utility company.

An easement in gross is a personal right, and is not designed to benefit any particular parcel of land.

Most individuals have no reason to obtain an easement in gross.

  1. Easements Appurtenant

An appurtenant easement benefits an adjacent parcel of land, and will continue to benefit such land regardless of the identity of any subsequent owners of the land.

The parcel of real property which is benefited by an appurtenant easement is the dominant estate – although a preferable term may be the benefited parcel.

The parcel of real property which is burdened by an appurtenant easement is the servient estate – although a preferable term may be the burdened parcel.

Minnesota Easements – Documents

Minnesota Easements are often created pursuant to a written document.

Perhaps the best document which may be used to create an easement would be a Minnesota Easement Agreement – which would be signed by the owners of both the benefited parcel, and the burdened parcel.

However, Minnesota Easements may also be created by:

  1. Minnesota real estate Deeds of Conveyance – which would be signed by only the owners of the burdened parcel; or
  1. judicial orders, mortgage documents, or the terms of decedents’ Wills.

Minnesota Easements may be created in Minnesota real estate Deeds of Conveyance by either the grants, or reservations, of interests in land.

Minnesota Easements – Easement By Necessity

One type of Minnesota easement which can result from the issuance of a judicial order is an easement by necessity – which can arise when:

  • a parcel of land having no direct access to a public road,
  • is purchased from a person who retains ownership of adjacent land having direct access to a public road.

While judicial relief may be available to the purchaser of the landlocked parcel – it would be considerably easier to obtain a contemporaneous written grant of an appurtenant access easement over the adjacent land from the selling landowner who also owns the adjacent land.

Minnesota Easements – By Prescription

A second type of Minnesota easement which results from the issuance of a judicial order is a prescriptive easement – which can arise by the continuous use of another person’s land for 15 years in an open and hostile manner.

Minnesota Easements – General Drafting Rules

The drafting of Minnesota Easement Agreements, or Minnesota real estate Deeds of Conveyance creating or reserving easements, are not for the do-it-yourselfer.

All documents creating Minnesota Easements should be drafted by a licensed Minnesota real estate attorney.

Minnesota Easements – Basic Elements

Properly drafted documents creating Minnesota Easements should be in writing, and contain all of the following elements:

  1. The proper names of all required parties.

A Minnesota real estate attorney should perform an examination of the real estate title with respect to the burdened parcel in order to determine the identity of all persons who are going to be necessary parties on the easement document – which may include lienholders, mortgagees, and other persons holding some form of encumbrance, etc.

  1. The proper legal description of the burdened parcel – which should be provided by a licensed surveyor if such a legal description has not been obtained from a previously recorded document.
  1. The proper legal description of the benefited parcel – if the easement to be created will be an appurtenant easement – which should be provided by a licensed surveyor if such a legal description has not been obtained from a previously recorded document.
  1. The proper legal description of the Minnesota easement parcel itself – which should be provided by a licensed surveyor.
  1. A precise identification of the scope of the easement, its purpose, and the relative rights and obligations of the parties to the easement.
  1. The duration of the easement.

While many Minnesota Easements are perpetual and “run with the land”, easements can also be limited in duration – particularly when they were issued in order to address an encroachment.

  1. Whether the benefits provided by an easement to the owner of the benefited parcel are to be exclusive.

If parties other than the owner of the benefited parcel can enjoy the benefits of the identified easement, the easement will be nonexclusive.

Minnesota Easements – Optional Elements

Since Minnesota Easements can be very flexible – consideration should be given to including some or all of the following additional optional elements in the easement document:

  1. Any limitations or restrictions on the use of the easement parcel – such as:
  • a prohibition against the parking of motor vehicles on the easement parcel,
  • a prohibition against the use of large vehicles on the easement parcel,
  • specific hours when the easement parcel can be used for commercial uses, and
  • particular access rights.
  1. Maintenance provisions for the easement parcel.

While identification of the parties who will be responsible to maintain the easement parcel is not a requirement, it is perhaps advisable to identify those parties who will be responsible to remove snow from the easement parcel, or otherwise to perform maintenance functions within the easement parcel.

  1. Insurance and indemnification provisions with respect to the easement parcel.
  1. Remedies in the event that the terms of the easement are not complied with – such as the failure to pay a share of maintenance costs.

Minnesota Easements – Unambiguous Terms

The scope of a Minnesota easement created by an express grant is entirely determined by the terms of the document creating the easement.

In 1968, the Minnesota Supreme Court identified that:

“if the easement is granted in terms which clearly and specifically allow or deny . . . [a particular] use, the language of the instrument creating the right will control.”

Farnes v. Lane, 281 Minn. 222, 161 N.W.2d 297, Supreme Court of Minnesota, 1968.

In 2010, the Minnesota Court of Appeals identified that:

“When intent is expressed in unambiguous terms, Courts give effect to the plain and ordinary meaning of the terms.

If however, an agreement is susceptible to more than one reasonable interpretation, it is ambiguous, and extrinsic evidence may be considered to interpret its meaning.”

Haissig v. Odom, Minn. Ct. Appeals – unpublished 2010 WL 4944623

Minnesota Easements – Ambiguous Terms

In general, Minnesota Easements which have clear and specific terms are less likely to have problems than documents which contain ambiguous terms.

However, Minnesota Easements which have ambiguous terms are subject to interpretation by the courts – which can be expensive for the parties.

Minnesota Easements – Right to Install a Dock

In Farnes, the Minnesota Supreme Court had to determine whether an access easement for a right-of-way to a lake also included the right to install a dock – since the language in the easement agreement was silent as to whether a dock could be constructed.

The Minnesota Supreme Court determined that the language in the Farnes easement was ambiguous and uncertain, and that the general principles of law relating to ambiguous writing applied:

“extrinsic evidence may be considered relating to the facts particular to the particular easement involved on the assumption that

  • the grantor intended to permit a use of the easement which was reasonable under the circumstances and

  • the grantee expected to enjoy the use to the fullest extent consistent with its purpose.”

Minnesota Easements – Types of Ambiguity

Minnesota Easements may possibly contain two different types of ambiguity:

  1. Patent ambiguity – the use of imprecise or contrary language in the grant of the easement; and
  1. Latent ambiguity – when the grant of the easement involves the omission of a physical dimension of easement (width or location), or the failure to specify the permissible burden of use on the burdened parcel.

Minnesota Easements – Document Recording

Any document creating a Minnesota easement should be recorded in the public real estate records against both the burdened parcel, and the benefited parcel.

If either the burdened parcel, or the benefited parcel, constitute registered Torrens Property, the document creating a Minnesota easement should be memorialized on the Certificate of Title for such property.

Minnesota Easements – Payment to the Owner of the Burdened Parcel

While the legal consideration to be paid to the owner of the burdened parcel can be nominal – there is nothing to prevent the owner of the burdened parcel from requesting reasonable compensation for granting an easement to the owner of the benefited parcel.

Minnesota Easement – Conclusion

Please contact Minnesota Attorney Gary C. Dahle for assistance with the drafting, execution, or termination of any Minnesota easement at 763-780-8390, or [email protected].

Minnesota Easement

Copyright 2017 – All Rights Reserved.

Gary C. Dahle – Attorney at Law

2704 Mounds View Blvd., Mounds View, MN 55112

Phone:  763-780-8390    Fax: 763-780-1735   [email protected]

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