How to Anchor a Floating Easement In Real Estate


Note: This podcast is no longer available, but please see below for the transcript of the podcast.

What’s a “floating easement?” Stan and Susan Servient recently bought a parcel of vacant land in Idaho and wanted the home they intended to build to have electricity.  The Servients granted Dominant Electric an express easement on their land. An express easement is “the right to use the land of another for a specific purpose that is not inconsistent with the general use of the property by the owner.” Hughes v. Fisher, 142 Idaho 474, 480, 129 P.3d 1223, 1229 (2006); citing Hodgins v. Sales, 139 Idaho 225, 229, 76 P.3d 969, 973 (2003); citing Abbott v. Nampa School Dist. No. 131, 119 Idaho 544, 548, 808 P.2d 1289, 1293 (1991).   property benefiting from the easement, or using the owner’s property is called the “dominant estate.” property burdened by the easement, or being used, is called the “servient estate.”   

The Servients cut their parcel’s legal description directly from the title report they received when they bought their property, and pasted the description into the express easement they found online and drafted for Dominant Electric. The Servients’ dilemma began because the Servients described their entire parcel in the express easement, instead of specifying only where they wanted the utility lines to be placed.  Dominant Electric’s express easement allowed the utility company to utilize the Servients’ entire parcel, including the beautiful hilltop location where the Servients wanted to build their dream home! The Servients had mistakenly created a “floating” or “blanket” easement in favor of Dominant Electric. Due to this simple error, Dominant Electric had the easement right to build its facilities anywhere on the Servients’ parcel it chose– even across their preferred location for the new home. The Servients could have avoided these problems!

The result: Dominant Electric now had total and complete discretion where it could place the powerlines serving the Servients’ future homesite, even if those powerline locations disrupted the Servients’ future plans for developing their property. The reason is that, in Idaho, the dominant estate is entitled to full enjoyment of an easement. Carson v. Elliott, 111 Idaho 889, 890, 728 P.2d 778, 779 (Ct.App.1986). Because the Servients granted Dominant Electric a “floating” easement, Dominant Electric’s rights became superior to those of the Servients. Boydstun Beach Assoc. v. Allen, 111 Idaho 370, 376-77, 723 P.2d 914, 920-21 (Ct.App.1986).

What could the Servients do? The Servients consulted their attorney, but only after they had already recorded the “floating” express easement.

Fortunately for the Servients, many times the law in Idaho is eminently practical. The Idaho Supreme Court has said that where a “floating” easement is created — one that describes an entire parcel as the easement area — the actual location of the easement is established where the easement‘s use is fixed. In this example, Dominant Electric’s easement right was fixed to the location where it installed its electric wires, and by that placement the easement ceased to cover the entire parcel. Coulsen v. Aberdeen Springfield Canal Co., 47 Idaho 619, 277 P. 542 (1929) and I.C. § 55-313.  Dominant Electric’s first use of the “floating” easement defined and limited the physical location of the utility company’s easement right. 

The Servients could have asked Dominant Electric to place its powerlines in certain locations, but the final decision in this case would rest completely with Dominant Electric. The Servients suffered a great deal of anxiety until Dominant Electric employees came out to install the powerlines on the property. Fortunately for the Servients, the Dominant Electric workers found no geologic obstacles to placing the powerlines in locations the Servients could accept, but did not prefer. However, the power lines’ final placement required the Servients to consult with their architect and make some significant changes to their home plans, costing the Servients some substantial financial overruns. 

What lessons can we learn from the Servients’ choices?

  1. Before making decisions that could mistakenly give someone else a right to use your property, get competent legal advice. An ounce of prevention is worth a pound of cure!
  2. When drafting a “Do-It-Yourself” legal document, simply copying and pasting could affect your real property rights in negative, unintended ways. Avoid being penny wise and pound foolish!
  3. Talk with your neighbor or your utility provider before you grant them an easement on your property. Make sure the easement is placed where YOU want it before recording it. And finally,
  4. Remember to CYA: Call Your Attorney! Have a great day. 

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.

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