As I discussed in a previous blog post, there are some aspects of property ownership that are commonly misunderstood.  One of those items definitely involve easements.  Another is something that may be in the easement, known as the mighty Tree.  Let us recap what we have learned about easements and then talk about the tree issue.

Dead Tree

If a tree falls in an urban area, does anyone hear it? The answer is Yes!

What is an easement?

Actually, the large majority of people I speak with have heard the words “easement” and “right of way”.  They tend to understand there is an area, usually in the rear of their lot, where utilities and drains are located.  If those utilities or drains are damaged, then someone will have to go back there and fix them.  The easement gives a utility company or government entity the ‘right to enter’ (this is important to remember) the property to make a repair. The size and location of the easement are on the plat of the property / subdivision.  This is how you know if there is an easement on a property.

Who owns the easement?

This is where things become confusing.  People are eager to tell me the owner of that weedy place behind their house that contains the easement (in order of popularity):

  • The County (the definite winner!);
  • The City (a very popular answer);
  • A utility company, most likely the power company;
  • A neighbor (this can be true, but it is rare because I did my homework before I went out there);
  • No one (I hear this every so often);
  • Me, the property owner and my neighbor (not a popular answer).

Usually, the correct answer is the last one, which tends to leave some people shocked.  A property owner still owns the ground where the easement is located.

Remember, an easement only provides the ‘right to enter‘…it does not imply ownership.

My fence was damaged by a fallen tree

In many neighborhoods, the easements are full of trees, fences, sheds, landscaping, and pools.  But when a tree falls after a storm, it almost always damages a fence. So the question becomes:  Who is going to pay for repairing my fence?  Who owns that tree in the easement?!

Fence over Stream

This chain link fence is in a terrible spot.

And the answer is…

It fully depends on whose property the tree is located.  In this instance, pretend that an easement does not exist.  The tree may be on private property, or perhaps a governmental entity, such as a school or community, owns the property.  The property owner is the responsible party.

Sometimes a governmental entity may have to go onto the private property to remove the tree because it is blocking a drainage ditch.  This is where the easement comes into play.  It gives a crew the right to go onto the private property and perform a necessary function, keeping water flowing so it does not flood properties.  However, the crew does not own the property.

The utility company cut a bunch of limbs in my backyard and left them!

This happens a lot in backyards across the area.  The power company will come through and trim the trees so they are not touching the electric lines.  Seems like a great maintenance idea.  But they usually leave the limbs behind and quickly move on.  This is because they do not own the trees.   They just have the ‘right to enter‘ the easement and keep their stuff properly working.  If you call and ask nicely, they sometimes will come back and pick up the limbs.

The flood finale

No matter how hard you try, there will always be some people who are not happy when the word “easement” is brought up. Unfortunately, this is something that is not well understood, so outreach is critical before working in a backyard.  If there are trees that must be cut down or have fallen during a storm (and possibly damaged something), be prepared to have a conversation about easements, private property, and ownership of a tree.

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