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Easements and land use law

An easement is a right to enter or use someone else's property for a specific reason. It remains in force even if the property is sold and is also transferable.

Jedidiah Charles McKeehan | Aug 5, 2018

Land surveyors are allowed to trespass

Property owners have the right to no trespassing All of us know someone who is completely obsessed with keeping people off of their property. They do not want anyone under any circumstances coming on their property for any reason or under any circumstances. And usually, that*s okay. If property owners do not want people to come on their property, then they are almost always able to do so. There are a few exceptions to this, however, and one of those exceptions is when land surveyors are doing surveying work. Exception for professional land surveyors Pursuant to Tennessee Code Annotated section 62-18-124 a professional land surveyor, *may go on, over and upon the lands of others when necessary to perform surveys for the location of property corners, boundary lines, rights-of-way and easements, and, in so doing, may carry with them their customary equipment and vehicles.* And really, if a land surveyor has to go on to someone*s property to do their job, there is nothing that the landowner can do to prevent the land surveyor coming on to their property. The statute even says that the surveyor can go to court and require that a landowner allow access to their property in order for the land surveyor to complete their job. Responsible for damages One small glint of sunshine for the landowners under this statute, they are entitled to recovery against the surveyor for any damages that are incurred while the surveyor is on their property.

Alejandro Luis Padua | May 29, 2018

Texas Pipeline Easement Legal Guide

* Determine compensation Adequate compensation for the easement is a critical factor in the agreement. The most common valuations of compensation are measured per foot (linear or square), per acre, or per *rod* of the pipeline. Offering a set amount is also a common practice. In addition to the permanent easement area, companies also tend to request access for a temporary work area. If so, it should also be compensated for in the agreement. Lastly, Texas courts further recognize remainder damages, which is compensation based on the decreased value of the remainder of the property outside of the easement area. * Determine the size and specify the area of the easement The size of the easement depends on the permanent pipeline easement and the temporary work/construction easement. A landowner should aim to limit the size of these easements in an effort to reduce the amount of land used and/or damaged by the easement. With regard to the temporary work easement, make sure that the termination date is honored and seek damages (or additional compensation) if not. Further, specificity is key in protecting a landowner*s interests within an easement agreement. An agreement that allows a pipeline to be laid *over and across* a landowner*s property*or other similar, broad language*is known as a blanket easement because it essentially gives the company permission to lay the pipeline anywhere on the property. A landowner must be proactive and define a specific easement area and any temporary work area. The company should survey the area and also make the survey an attachment to the agreement itself. * Limit the easement agreement to one pipeline and one product Pay close attention to the easement agreement language to ensure that it allows only one line on the property. This includes forbidding the company from assigning or granting its rights to another company with the intention of laying another pipeline in the easement. Once the limitation to one pipeline is established, the landowner should maintain informed of the product running through the pipeline on his or her land. If the company wants to change the product that flows through the pipeline, it should inform the landowner because a second easement would likely be necessary. * Set the standard for the pipeline*s diameter and pressure A pipeline*s diameter and pressure are directly related to the safety of the pipeline. A landowner*s goal is to negotiate with the company for a pipeline that is moderate in diameter and pressure. * Set a specific minimum pipeline depth Texas law generally requires that pipelines be buried 36 inches below the ground. However, erosion can eventually put the pipeline outside of this standard. Therefore, set the pipeline*s depth at least 48 inches or require that the company maintain, at all times, the minimum 36-inch depth. * Make sure the easement is nonexclusive A landowner is best situated when he or she retains the right to grant additional easements within the easement area. This maximizes the easement area and prevents taking up even more of the landowner*s property for easement purposes. * Research restrictive covenants Restrictive covenants impose either restrictions on the use of property or obligations on the property owner. Before finalizing any easement agreement, check any restrictive covenants that the property may be subject to and how they apply to the easement. * Limit transferability A landowner must determine whether it is in his or her best interest to allow the pipeline company to assign its rights under the agreement to a third party. If such assignment is allowed, the agreement should provide that the company must obtain written consent from the landowner and that the third party will have to abide by the terms of the agreement. The company is ultimately held liable for any breach by the third party. * Right to damages and remedies The company should be responsible for damages caused during construction, maintenance, repair, and replacement activities. The company should also provide notice to the landowner of any of the previously mentioned activities, especially those that may disrupt the landowner*s use of the property. If the company breaches the easement agreement, Texas courts will only terminate the agreement if the violation is deemed *material*. Materiality is a question of fact, the determination of which can lead to a long and expensive judicial process. A proactive landowner can mitigate the determination of materiality by clearly defining in the agreement what violations are deemed material. A landowner can also set forth specific conditions that can terminate the agreement, regardless of materiality. * Reserve surface use Once the pipeline is laid down, the landowner should be able to use as much of the easement area as necessary as long as it does not interfere with the pipeline*s operation and maintenance. * Liability and indemnification provisions The agreement should state that the landowner is not liable for any acts, omissions, or damages caused by the company, its agents, contractors, or employees. Basically, any claim brought against the landowner will be passed on to the pipeline company, while the landowner is held harmless. * Consult a licensed, experienced eminent domain attorney Although this article provides a helpful framework of issues to consider, a prudent landowner should contact an attorney experienced in easement negotiations before executing a pipeline easement agreement. A pipeline easement attorney will negotiate terms that are in the landowner*s best interest and maximize compensation. If a pipeline company is attempting to secure an easement on your property, contact Padua Law Firm*s for a free consultation at 713-840-1411 or email at [email protected]

Monisha Bobbie Kalia | Dec 15, 2017

Confusion around Pipeline Easement Nrgotiation

THE CREATORS OF THE CONFUSION With the growth of the Marcellus Shale play and the related pipeline companies, came Easement Agreements, Land Men and attorneys (knowledgeable and not so knowledgeable) and several wonderful nonprofit organizations. Confused homeowners are bombarded with information from all parties, and all sides, each purporting to have experience with what a homeowner can and cannot do with regards to negotiating with these new invaders of the republic. PROPERTY OWNERS LOST IN THE PROCESS From the chaos of the fighting between Right of Way Agents (called Land Men) representing the pipeline companies, the attorneys, and the nonprofits, many homeowners report feeling they have become lost. Many feel they have been misguided and, more sadly, suffered terrible, irreparable and preventable changes to their property. This includes the loss of sound and visual buffers, as their trees were cut down and their stone walls, lawns, gardens, and landscaping are torn apart. In addition the noise, dirt, and chaos of open trench or HDD drilling is impossible to enjoy. THE GREAT MISCONCEPTIONS Let's clarify something: THE EASEMENT AGREEMENTS OF THE PIPELINE COMPANIES ABSOLUTELY CAN BE MODIFIED and THE AMOUNT PROPOSED BY THE PIPELINE COMPANY ABSOLUTELY CAN BE NEGOTIATED. Remember the pipeline's first offer is never their final offer. If you have been informed by anyone that you must accept the terms of the pipeline company as given and/or that the easement agreement cannot be negotiated, THIS IS ABSOLUTELY NOT TRUE. If you are told you must sign in 72 hours, that is also not true