When Are Expansions Of Easements In Real Estate Allowed

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Podcast Episode by Greg George

Property owners in Idaho who benefit from easements over someone else’s property—or who have easements going over their property—can have plenty to think about when it comes to their legal rights and responsibilities.  In today’s episode Greg various situations and legal options.

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Show Transcript

Property owners in Idaho who benefit from easements over someone else’s property—or who have easements going over their property—can have plenty to think about when it comes to their legal rights and responsibilities. Maintenance, use, liability, and other issues have led to countless disputes and lawsuits around North Idaho. But one area in particular that can create confusion, uncertainty, and distress is to what extent the law allows people who benefit from an easement over someone else’s land to expand or change that easement. 

For example, disputes can arise when an easement beneficiary wants to physically expand an easement (say, by widening a road) or increase the use of the easement (say, by subdividing a property that benefits from an easement). In those circumstances, the property owners who are burdened by the easement may feel that the easement beneficiary is taking advantage of them, overburdening their property, and going beyond what the parties originally intended the easement to be. Situations like this can include allegations of significant property damage or property value loss together with substantial attorney’s fees and other costs to resolve. Needless to say, when it comes to an easement it is in everyone’s best interest to avoid these scenarios. 

With that said, let’s examine what can happen when someone disputes the right to physically expand an easement. Oftentimes these situations arise when property owners have an agreement or deed creating an easement that does not clearly define the width of the easement or the scope of use. For example, many easement documents—in particular older documents from decades ago—will create an easement by reference to an “existing road” that traverses a certain parcel of land. Such easements can be difficult to enforce given the vagueness of how the easement is described and the inherent issues with determining the extent of what an “existing road” was 40, 50, or more years ago. In such situations, it is possible for an easement beneficiary to, without authorization from the other property owner, widen or deepen an “existing road” easement. Especially on larger properties, such expansion might not be noticed immediately.

When is such expansion allowed and not allowed? Under case law from the Idaho Supreme Court, the beneficiary of an easement cannot unilaterally expand the easement to unreasonably increase the burden on the neighboring property.⁠1 Whether the expansion of an easement “unreasonably increases” the burden on the neighboring property is generally an issue of fact to be determined on a case-by-case basis. However, the Idaho Supreme Court has stated “An increase in width does more than merely increase the burden upon the servient estate; it has the effect of enveloping additional land.”⁠2 Consequently, the Idaho Supreme Court ruled in a case back in 2005 that a property owner could increase the use of a dirt road consistent with the normal development of its land but could not widen the easement in order to develop its property into a subdivision.⁠3 

In other words, Idaho law is pretty clear that the beneficiary of an easement cannot, without the express permission of the property owner burdened by the easement, make the easement wider. And because easement documents need to be in writing and should always be filed at the County Recorder’s Office, any permission to widen an easement should also be in writing, signed by all parties, and recorded. That type of document should also be as precise as possible in describing the expanded width and location of the easement, so that there is no room for ambiguity about where the easement area starts and where it ends. 

That covers expansions in the physical width of an easement. What about expansions in the use of an easement? Those issues can be more nebulous. As mentioned earlier, Idaho law generally allows easement beneficiaries to increase the use of the easement consistent with the normal development of their land. And Idaho law also states that the expansion of an easement cannot “unreasonably” increase the burden on the neighboring property. 

These doctrines, while perhaps necessary as a practical matter to allow for ordinary development and changes in use of property, unfortunately do not afford property owners much clarity about when a change in use of an easement is legally allowed or not. One island of clarity, however, is the rule that an easement beneficiary cannot being using an easement over someone else’s property as a means of accessing a property not included in the original easement.⁠4 In other words, say there is an access easement over Parcel A for the benefit of Parcel B. The owner of Parcel B cannot, without the consent of the Parcel A owner, begin using this easement to reach Parcel C. 

Otherwise, the law regarding changed use of easements is murkier. Property owners in Idaho who want to minimize the chance of forking over thousands of dollars to an attorney to litigate whether there has been an “unreasonable” increase in use of an easement are well-advised, first, to get their easements in writing (even if they believe they have “implied” or “prescriptive” easements, which are beyond the scope of this podcast today). 

Second, property owners should make sure their easement documents are as clear as possible about the scope of allowable easement use. At minimum, an easement document should set forth the allowed purposes of use—for example, ingress, egress, and utilities, which are the most common purposes for private easements in the Inland Northwest. But a point that is often overlooked is how many people, or households, will be allowed to use an easement. The number of people allowed to use an easement to access benefited properties is not limited by names of people, but rather is limited by the scope of the easement.⁠5 In other words, if you benefit from an access easement to your property, you should ordinarily be able to invite your friends over and have them use the easement to reach your house. 

Issues, however, can arise when someone owns property benefiting from an easement and decides to subdivide. What the person who granted the easement once thought would be just one or two other owners using the easement could then become five, ten, or more. Situations like this are ripe for disputes. On the one hand, easement beneficiaries who want to subdivide could argue that their development plans were within the parties’ knowledge at the time of the easement, or that the development is a reasonable use of the property, and so on and so forth. And the property owner burdened by the easement would likely argue that the easement was only ever intended for the original number of owners and not to be increased. This type of dispute could very well go to Court, where the winner would be determined by what the testimony and other evidence showed. Such a case could easily become quite expensive, as well as logistically difficult because discerning the original intent of an easement can require going back many years and trying to elicit testimony from people about the intent and understandings that parties had decades ago.

The alternative is to have easement documents in place that expressly state the scope of allowable use. I have both drafted and seen easements that contain verbiage limiting the use of the easement to a specified maximum number of households. For example, say that a neighbor wants an easement over your property and you have reason to believe that person may subdivide. In that circumstance, you would probably want to have the easement written so that the use is expressly limited to one household (if you don’t want the neighbor to subdivide and increase the burden on the easement at all) or, say, two or three households (if you are OK with the neighbor subdividing but want to make sure there is a cap on how much the neighbor could use the easement). 

The crucial point is to get the scope of the easement written down as clearly as possible so that there isn’t room for people to argue about it later. To that end, Macomber Law has significant experience both drafting and reviewing easement agreements, and we would be happy to help landowners in Idaho, Montana, and Washington who want to make sure their easements are as precise as can be to minimize the possibility of arguments later on.

At Timely Contract, our primary legal services include: real estate contract review, real estate contract drafting, legal opinions for title insurance exceptions, and research, due diligence, and legal opinions for properties.

If you have questions or concerns about a real estate transaction or issue in Idaho, Montana, or Washington, call today to schedule a no-charge consultation, (208) 712-4700.

At Timely Contract, we have local real estate attorneys who have experience throughout Idaho, including: Boise, Post Falls, Coeur d’Alene, Lewiston, Moscow, and Sandpoint.

We also have local real estate attorneys who have experience throughout Montana, including: Missoula, Billings, Bozeman, and Kalispell.

And we have local real estate attorneys who have experience throughout Washington, including: Spokane, Spokane Valley, Liberty Lake, Medical Lake, and Cheney.

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1 Beach Lateral Water Users Ass’n v. Harrison, 142 Idaho 600, 606, 130 P.3d 1138, 1144 (2006), citing Abbott v. Nampa Sch. Dist. No. 131, 119 Idaho 544, 549-50, 808 P.2d 1289, 1294-95 (1991).

2 Aztec Ltd., Inc. v. Creekside Investment Co., 100 Idaho 566, 569, 602 P.2d 64, 67 (1979).

3 Argosy Trust ex rel. Its Trustee v. Wininger, 141 Idaho 570, 573, 114 P.3d 128, 131 (2005).

4 Christensen v. City of Pocatello, 142 Idaho 132, 137, 124 P.3d 1008, 1012 (2005).

5 Beckstead v. Price, 146 Idaho 57, 65-66, 190 P.3d 876, 884-85 (2008).

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