Easements: Taking Your Rights Without Taking Your Property
With an easement, you keep your property but other people get to use it whether you like it or not. Beware the easement taking, whether temporary or permanent.
What are Georgia’s Easement Laws? Fight For Your Just Compensation
As a property owner, you always face potential easement through the government exercise of eminent domain. This means your land can be taken in the public interest, even against your will. However, you are entitled to just compensation.
Sometimes, the government takes your land in full and you have to relocate. Many times, however, the government’s actions are not so extreme. Perhaps they just need access through your property, or to use only a small portion of your property.
An attorney can evaluate your case for free. Why take any chances? Call today to find out how much compensation you could receive.
When the government demands access to your land but not ownership, they’re looking for an easement. You may have come across the term “right-of-way” a few times. There’s a difference between an easement and the right-of-way: Right of way means the property owner has to deed their land over to the government. An easement only gives the government a right to use the easement area.
Common types of easements in Georgia include utility easements, drainage and sewer easements, slope easements, and construction easements.
Utility easements
Under Georgia utility easement law, the government has the right to easements of private property in order to install, expand, and maintain utilities such as power lines. Very often, new construction can impact the location of existing utility lines. For example, a widened road can result in power lines being pushed back onto adjoining properties.
Other types of utility lines include electric, gas, and water lines. Even underground lines can significantly impact the land above them, as government workers will need to access the lines and repair them as necessary.
Note: If you build something that interferes with the easement holder’s ability to use their easement, it will need to be removed. Even something adjacent to the easement area that interferes with use of the easement may be a problem. Problematic structures may have to be removed at your expense, without entitling you to any additional compensation.
Private drainage easements are often required by the government as part of urban maintenance and improvement. What does a drainage easement look like? It could take the form of a buried water line, or grading that provides surface water a pathway through which to flow. Oftentimes, the government must alter your land by digging ditches, building retention ponds, and performing other activities of that nature.
As with all easements, drainage easement restrictions on the property owner can be significant. You need to understand the full scope of the easement and how things may change in the future before agreeing to payment. For instance, while you may agree to an easement for water runoff, will that runoff amount stay consistent? The government might tell you that it will but that could change at any moment.
How often will government technicians need to visit the easement area and make improvements and repair? As difficult as it can be to project these things, you need to seek compensation for them now. It is extremely unlikely you will be able to get additional compensation later on. Experience in anticipating and calculating these costs is one of the many examples of how an attorney can help.
Tip: The “right to exclude others from your property” and the “right to park” are rights typically lost due to placement of easements.
Construction easements
Think of temporary construction easements as permission to use a segment of your property for however long a construction project lasts. One common temporary construction easement example is for the government to use your land as a staging area to complete their work. This type of easement can have a significant negative impact on your use and enjoyment of your property. For instance, it could result in large materials and equipment being used and operated close to your home or place of business.
How much compensation are you entitled to? Is the construction easement also a slope easement? An attorney can help you understand what’s being asked of you, consider side effects and consequences that you wouldn’t think of, and fight to try to get you maximum compensation that reflects the highest and best use of your land.
Property easement rights: How do they arise?
At this point, you may be wondering: Is there a utility easement on my property? Is there some kind of a sewer easement on my property I’m not even aware of?
It’s possible. An easement is created in three primary ways: express grant, prescription, and implication.
Express grant
The first way is the simple, typical process most people think of. An easement created by an express grant is a written contract between the government and the land owner. This contract lays out specifically where the easement is located and how it can be used.
Prescription
Not all easements are created expressly or even require the land owner to be aware that it’s happening. Sometimes, consistent behavior by an easement user can create a permanent right to use that easement. This is called prescription or adverse possession.
Imagine you have a neighbor that, unknown to you, was cutting across the back of your large field as a shortcut to exit their property. They maintained the path and repaired it as necessary so they could keep using it. After a decade of this, you finally discover it and immediately tell them to put a stop to it.
Unfortunately, at this point, your neighbor may have acquired a permanent right to use that easement under the rules of prescription.
Easement by implication
You can’t enjoy your land if you can’t freely access it, so public policy generally dictates that a landlocked parcel comes with implied easement rights. That means you can often use the neighboring parcel in a limited way to access your parcel. This is sometimes known as a driveway easement in Georgia.
The easement can last as long as it’s the only way to reasonably access the landlocked property. It also likely runs with the property from one owner to the next.
What does this mean for you when the government needs an easement for a landlocked part of your property? It could mean there’s an implied easement for the government to access the easement.
In addition, if your own access to the road from your land is blocked or interfered with by the government’s activities, you may be entitled to compensation under Georgia law. How much the work interferes with your access and how much financial loss you’ll suffer as a result is a matter that will be up for debate.
Tip: Even if your property isn’t being condemned, you may be entitled to compensation for loss of your driveway easement due to condemnation of a neighboring property. Get your case evaluated for free by calling a Georgia eminent domain attorney at 1-888-391-1339.
Common easement questions
Here are a few other common questions that people have about easements in Georgia.
Do I have to give an easement?
It’s unlikely you’ll be able to successfully avoid the government’s easement. What constitutes an acceptable public purpose under Georgia easement law is very broad. Your efforts are best focused on seeking maximum compensation.
Does an easement have to be in writing?
An express grant must be in writing to be a valid contract. The easement language covering your rights and the rights of the government on your land can be complicated. Have your eminent domain attorney review the language prior to agreeing to any settlement.
An easement does not have to be created expressly, though. Sometimes, easements are implied or created by the routine behavior of an exclusive user.
Can you sell your property that is burdened with an easement?
Yes. As the new owner must typically comply with the easement, this may reduce the value for which you can sell your land.
There is so much to consider before signing off on potential compensation for even the most straightforward-seeming taking or easement. An experienced eminent domain attorney can evaluate your case for free.
How long is an easement good for?
In some situations, the government is interested in just a temporary easement. This is like having someone rent some property from you, with two key differences:
The easement won’t have an automatic expiration date. Instead, the easement will be in effect until the construction project requiring the easement is complete. Construction projects, of course, are not known for their timely completion, typically taking 3-5 years.
With a rental property, you expect to get the property back in roughly the same condition it was in at the start of the rental. A temporary easement, however, is being used for construction purposes and significant damage may occur. That’s why, when it comes to seeking fair compensation for an easement, the location and intended use may be more relevant than the time duration of the easement.
Other times, the government is interested in a permanent easement. A utility easement is an example of a typical permanent easement. Unless the utility company decides it doesn’t want it any more, the easement can last forever.
When the easement is permanent, future consequences can be unpredictable. It may be a simple power line on your property now, but the utility company will generally have the right to install unlimited utilities on the easement portion of your land forever — and getting more compensation in the future will be nearly impossible. It’s important to get the negotiations right when the easement is first acquired.
Can you build on an easement?
As a practical matter, it’s inadvisable. Activities by the government in the easement area could damage any structures. If these structures interfere with the government’s activities, they can be removed without any additional compensation to you. This also applies to natural structures that may impede the government’s activities, such as trees and their roots.
How much is your easement worth?
It depends, which is why you should have an attorney to protect your interests.
The government would like to acquire the easement to your land for as little as possible. You might agree to a low offer from the government if they assure you their easement won’t interfere with your use of the property. But they could be completely wrong with the purest of intentions.
What losses will you experience from the presence of the easement? Some questions to consider include:
What is the land currently being used for?
What could it be used for?
How seriously is your use and enjoyment of the remaining land impacted?
How much does the easement impact your property’s value on the open market?
Investigating these questions is one of the many ways an attorney can help as you face the awesome power of the government.
Can I negotiate with the government on my own?
You can negotiate with them directly, but here are two major obstacles you’ll face:
You may not know what to fight for. Are you entitled to additional compensation for the disruption of large vehicles using an implied easement? Is there reason to believe the government’s activities on the easement will look a lot different in the future than they do now? There is a great amount of detail to consider whenever selling any kind of interest in your property.
You may not be able to front the expenses for any outside experts.Land appraisal is a complicated business done by skilled professionals. Experts are often needed to weigh in on what losses you may face as a landowner or what the highest and best possible use of your land is. By hiring a law firm with deep resources, all of these expenses can be advanced on your behalf.
Why do you want an attorney from the Georgia Eminent Domain Law Firm?
Four of our attorneys have experience working with a state’s department of transportation. That rare experience has created a deep pool of inside knowledge on condemnations and easements, a pool we draw from on behalf of our clients.
You didn’t ask to be put in this position, and you do have certain rights under Georgia law. We know what you’ll face, how to project future costs, and how to fight tooth-and-nail for the full compensation you may deserve.
No upfront costs
We don’t charge by the hour, and you pay nothing to hire us. In fact, we only get an attorney’s fee at all if we’re successful in increasing the government’s original offer to you. This is called a contingency fee. On top of our commitment to justice, we have every financial incentive to seek top dollar on your behalf as quickly as possible. And if we earn an attorney’s fee by increasing your payout, we don’t collect it until after you’ve received your just compensation.2
Did You Know? With us, there is also no retainer fee and no upfront cost to hire the experts that may be necessary as we try to build your case for ultimate compensation. Even the case evaluation is completely free and there is no obligation to hire us afterwards.
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There are only a handful of attorneys in GA who practice eminent domain exclusively. And even fewer with DOT experience. That’s why it’s always worth it to get a free case evaluation.
Here’s how it works:
1) Tell us about your situation.
2) We research your property as needed, using DOT maps, our own technology, and experience to see the exact effects.
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