Easements, What are they?
Easements are common features of a residential real estate law practice both in Georgia and throughout the country. While there is no single way to use an easement, Georgia property law defines an easement as the right to use property in a specified manner. An example would be a private driveway benefiting a single family home that runs over a neighboring parcel of land. The owner of the house has the right to use the neighbor’s property to drive to and from the house without interference from the neighbor. On the other hand, the neighbor does not have the right to drive across the house’s property to his own property without permission. In this case, the house benefits from an easement, and the neighbor is burdened a servient easement.
Easements can be found in various forms, including express, implied, by necessity, by prescription, and by condemnation, among others. An express easement is usually a written statement in the property deeds signed by the property owner, granting easement rights in land owned by a neighbor to the easement holder. When an easement is granted by the property conveyance instrument, a descriptive legal document that transfers the property to the new owner, it is known as an express easement. In Georgia easements express reserves a right in the property granted to a neighbor or easement holder.
Georgia law recognizes implied easements. Courts grant these types of easement when there is no writing present and there is evidence of obvious, long usage . For example, someone could walk along a trail over someone’s property to go to the beach every day for years. It would be obvious that the person used the path frequently out of necessity. The owner of the property may lose their rights to prevent use by an implied easement.
Easements by necessity are created by law when an otherwise useless piece of property, such as a landlocked parcel with no ingress or egress, is given an easement to pass back and forth so as to prevent the property from being rendered useless. This may happen when a person buys a smaller, landlocked portion of land in the middle of someone else property, to which they cannot access without crossing another person’s land.
Easements by prescription may be acquired by continued and uninterrupted use over 20 years.
Easement by condemnation, or eminent domain, is when a government or private company is granted easement rights to land for a public purpose. Their private interest in the property is outweighed by the public good for which the land will serve.
Easements run with the land and pass to later grantees. That is: if a property is sold that contains an easement the new owner receives the property subject to an existing easement. Conversely, an easement is also binding on successors and assigns, so subsequent owners lose the benefit of the easement unless that right is explicitly reserved in the deed granting the property to a new owner.
The Law in Georgia that Applies to Easements
Georgia’s law of easements is found in Title 44 of the Official Code of Georgia Annotated. O.C.G.A. § 44-9-1 provides (in part) that an easement may be created expressly by deed. See also Stokes v. Futrell, 296 Ga. 27 (2014) (discussing how an easement may run with the land as prescribed in O.C.G.A. § 44-9-30) and Sun State at Lake Hartwell, L.P. v. Woodall, 277 Ga. 592 (2003) (applying the rules provided for in O.C.G.A. § 44-9-30 and concluding that proposed easement was not enforceable against servient estate because applicable statutory requirements had not been met); Camp v. Leach, 256 Ga. 63 (1986) (applying the rules provided for in O.C.G.A. § 44-9-30 and concluding that a document purporting to create an easement was unenforceable as a matter of law).
Other sections of Title 44, such as O.C.G.A. § 44-9-14 (providing for the common law of easements as supplemented by provisions of Chapter 9) and O.C.G.A. § 44-9-7 (providing for the ability of owners of adjoining property to build walls and fences on the boundary line), are applicable when the owner of a servient estate builds a blocking structure that the owner of a dominant estate would like to use in some fashion.
Prescriptive easements are defined in O.C.G.A. § 44-9-1 and codified and further defined at O.C.G.A. § 44-9-60 et. seq. A prescriptive easement is acquired when (1) the claimant has exclusive possession of the easement for at least seven years; (2) the use of the easement is public, visible, continuous and uninterrupted; (3) the use of the easement is as of right; and (4) the use of the easement is hostile. See Hall v. Dorsey, 229 Ga. 348 (1972).
Different Types of Driveway Easements
Driveway easements serve various purposes and fall into several categories. The two most common are access easements and shared drive easement agreements. An access easement permits a property owner to cross over another person’s property in order to reach their own. A typical scenario in Georgia is that an owner of a landlocked lot needs to cross the property of his neighbor in order to get to the public road. These easements are most often granted by mutual agreement but they can be obtained through adverse possession under certain circumstances. The Cravey case is a Georgia appellate decision from the 1800s which describes how to obtain a prescriptive easement over a neighbor’s property. Cravey v. Vadsinger, 52 Ga. 97 (Ga. 1874).
A shared drive easement agreement is a more informal means of granting an easement over a person’s property. Usually the landowners enter into a written contract describing each person’s rights and responsibilities. Most often the contract becomes very complicated with specific terms regarding the maintenance of the drive, use of locks and gates, sharing expenses, allocation of the right to park on the drive, and the right to remove improvements under certain circumstances.
The Georgia courts have recognized several types of easements. In the 1979 case of Smith v.Davis, 240 Ga. 189, 240 S.E.2d 653 (1979), the Georgia Supreme Court held that there are four "primary" categories of easements:
- (1) an easement of way or way of necessity;
- (2) an easement of way or way of usage;
- (3) a prescription easement, and
- (4) a claimed easement of necessity.
The law regarding how to grant or convey an easement is found at O.C.G.A. § 44-9-1. Estates for years, to the use of another, are not subject to the statute of frauds and may be conveyed orally. However, any easement created in the future must be created by deed, will, lease or grant. O.C.G.A. § 44-9-1(a).
How to Obtain a Driveway Easement in Georgia
The process for establishing a driveway easement in Georgia generally involves filing a legal action in the appropriate jurisdiction. If the easement is granted by a conveyance of deed or will, the process is automatic with no other determination required. The legal action will determine the necessary location, extent, scope, duration, and fee or rental, if any, of the easement.
Lesser rights than ordinary private ways. The rights of a grantee of a specific private way are measured by the purpose for which it was granted. So long as the grantee makes no unwarrantable use of such way, the grantor cannot complain. Browdy v. Manning, 128 Ga. 569, 582, 58 S.E. 1016 (1907) ("Ordinary private ways were not granted, and the grantee was not permitted to have a way across the plaintiff’s land except for the prescribed purposes") (emphasis supplied).
The right to turn around. An easement for any county road, village street, or public path must, if the owner of the property over which the easement runs gives notice that the easement is not granted, be at least ten feet wide and must have a length at least equal to the length of the property over which the easement runs. OCGA § 44-1-15(a). The purpose of this section is to allow the owner of the land over which the easement runs to give notice that the easement may not be used by the public and to show that nothing passes to the grantee except the right to pass. Id., Committee Notes. The grant of such an easement, even though granted by a private deed, should state a consideration since the value of the grant is measured by its prohibition against the use of the land for certain purposes. A provision to make the easement transferable by the grantee would be subject to the private nature of the interest by virtue of the statute. Davis v. Ellis, 226 Ga. 653, 118 S.E.2d 326 (1968).
A quiet title action to establish the existence of a drive easement is authorized. Smith v. Smith, 248 Ga. 443, 283 S.E.2d 905 (1981).
The Rights and Duties of the Holder of the Driveway Easement
The rights and obligations of parties in a driveway easement have been the subject of several Georgia court opinions. They have made it clear that the use of a driveway easement must be reasonable and that such an easement does not carry with it the right to cross other property, absent special circumstances. They also held that common obligations among parties sharing a driveway include general maintenance and repair – including debris removal, but not necessarily repaving or reconstruction.
For instance, in Barrett v. C.S.&A.R. Co., 110 Ga. 533, 35 S.E. 866 (1900), the Georgia Supreme Court held that the existence of an easement, where a railroad tracks runs through a property, may extend to the actual use of the land by the railroad. It also concluded that this land use for a railroad was governed by the Railroad Code, which provides that when the land was not in active use by the railroad company, the railroad could make a lease agreement with the landowner regarding its commercial use or any other commercial use.
In St. Joseph’s Infirmary v. Atl. & Pac. Tel. & Tel. Co., 124 Ga. 35, 52 S.E. 514 (1905), the Georgia Supreme Court held that the telephone company could use the sidewalk when placing or picking up its poles. However, the telephone company was still bound by the general rules and regulations of the municipality, and could not establish its own rules for the use of the sidewalk or be exempt from municipal rules and regulations.
The Georgia Supreme Court held that the non-exclusive water line easement required all owners benefiting from the easement to equally share the cost of repairs and maintenance and pay sufficiently for use of the easement . Bd. of Comm’rs of Town of Union Point v. Power Co., 118 Ga. 675, 45 S.E. 234 (1903).
In Moore v. Liggett & Myers, Inc., 145 Ga. 522, 89 S.E. 382 (1916), the Georgia Supreme Court held that the easement holder could not change the location of the pipeline without consent of the other owner. The Georgia Supreme Court also stated that the holder of the easement may not construct pipelines and railroads over the property of the grantor of the easement and may not enter adjacent properties to lay pipes to reach the easement. Id.
If the grantor of the easement is required to make repairs to the easement area, the Georgia Supreme Court held that the easement holder must, prior to the repair, notify the grantor of the need for repair and allow him or her an adequate time to respond prior to carrying on with the repair. Fouraker v. Fred R. Jones Realty Co., 204 Ga. 146, 48 S.E.2d 820 (1948).
Georgia courts have repeatedly failed to define what is encompassed in the general maintenance of the easement. For instance, in Blue Ridge Ciuil Elec. Membership Corp. v. Locke, 195 Ga. App. 148, 393 S.E.2d 699 (1990), the Georgia Court of Appeals held that the holder of the easement was not responsible for the maintenance of electrical lines on the easement.
Although there is a general rule established regarding easement rights, Georgia easement law is highly fact specific, and parties to an easement should consider their own ability to control the property as they draft the easement document.
Resolving Disputes Between Easement Holders
Common Disputes: In Georgia, most driveway easement disputes fall into one of two categories. The first scenario is a property that is burdened by an easement that the current owner did not create. The second category is created when a current owner has violated the terms of the driveway easement.
Disputes related to driveway easements have different issues than disputes related to other types of easements. First, most driveway easement agreements are not written, making them difficult to enforce. Conversely, most other types of easements are written, making them relatively easy to enforce. Second, driveway easement access is often limited. These restrictions are sometimes difficult to resolve.
Georgia law allows for the enforcement of easements created by deeds, by express or implied grants in wills, or by prescriptive use. Either party to a property line dispute may file a suit to enforce the easement, recover damages, and to have the actual location determined.
Common resolutions to driveway easement issues include the granting of easement usage, pay damages, and the removal of obstructions. In some cases, an easement dispute can be resolved through mutual agreement of the parties.
Agreements between neighbors are often reached through mediation. Mediation is the process of submitting a dispute to a neutral third party. A mediator usually works with the parties in an effort to resolve the conflict.
If efforts to mediate fail, the dispute can then move on to litigation. This process is more complex and time consuming than mediation, but may be necessary.
How To Terminate or Modify an Easement
Easements can be modified or terminated. O.C.G.A. § 44-9-1 specifically provides for the modification of an easement for a driveway or roadway. To do so, the party seeking the modification shall file a complaint stating the facts upon which he relies to show there has been a material change in the location of the nearest street or road of sufficient capacity for normal traffic, considering the location of the existing streets and roads and the manner in which the surrounding area has been developed. If the court finds from the allegations of such complaint that it states a cause of action, the court shall direct service to be had on the owner of the dominant estate in the easement and provide for a hearing upon that party and the servient estate.
The court shall render judgment based upon the evidence and may extinguish the original easement and impose a modification of its own including but not limited to relocation of the easement or a limitation of the area over which it is to run. O.C.G.A. § 44-9-2. This statute makes it clear that the easement may be terminated but only in favor of a driveway or roadway easement. In other words, even if an easement for use of a driveway is terminated, any other type of easement is not necessary terminated. For example, if you have a driveway easement for access to your neighbor’s property and there is another access road you want to use in lieu of the driveway, you can terminate the driveway easement as to that area where the new road is located and relocate the driveway easement to that location. But, the statute does not create a right to terminate other easements.
In a similar fashion, you may modify easements for certain utilities. O.C.G.A. § 44-9-3. The process is similar in that if the petition states a cause of action the court will convene a hearing and determine whether the easement should be modified or extinguished.
Why You Need An Attorney
Easements related to driveways can be simple or complex depending on the nature of the right, the location, and the amount of traffic. Some are purely private, made by agreement between a single landowner or a small group with a common need; some involve many properties and important access by known or unknown parties. Some are unnecessary in light of existing rights; others are not given the weight they deserve. In any case, if you own property that has a driveway easement, these issues have serious practical implications for how your land is used and developed. They affect value, saleability, marketability, and even financing. It is important to deal with them early, before an investment in time and money creates a problem. An easement that impacts your on a consistent basis should be evaluated and adjusted in accordance with your actual use rather than subjective intent. Legal tools can enforce your rights against licensees , and create more flexible and direct avenues for protection than periodic nuisance actions, injunctions, and lawsuits for trespass that may not be worth the time and effort necessary to recover after damage is done. A real estate attorney experienced in easements can better evaluate the relative benefit or detriment of the right, access obstacles, and what sits between the easement and owner of record. They can draft easement agreements tailored to your unique situation, work with other parties that may have interests in the right-of-way, negotiate and arbitrate with other owners to find an easement or restriction that works for everyone, prepare disclaimers to help limit liability, or bring suit when the other party will not cooperate. For example, homeowners associations (HOAs) are not always responsible for providing access or maintenance to every roadway; when they are, however, having an attorney draft an easement to clarify this relationship can help minimize risk inherent in this situation.