You Got to Know When to... Holdover and What it Will Cost

In general terms, a holdover occurs when a tenant maintains possession or occupancy of leased premises, past the expiration date of the lease agreement. Absent a provision in the lease, a landlord may treat a holdover “tenant” as no tenant at all, but as a trespasser, and initiate eviction proceedings (after Ohio’s “Statutory 3-day Notice”). Alternatively, absent lease language, a landlord can treat the holdover as a tenant, and hold that person to a new lease term. The conduct of the parties determines whether or not an implied contract to lease arises, and the landlord’s acceptance of rent is usually the conduct considered to be conclusive proof of a new tenancy.

How long is the new tenancy for? In Ohio (and many other jurisdictions), the general rule is that a tenant who holds over, can do so for a term equal to the term of the original lease, provided the period is for one year or less. For example, a tenant with a lease for six months would be entitled to a new six-month lease, but a tenant holding over after an expired five year lease would be considered a month- to-month tenant (unless, that tenant offered six months of rent in advance, which was accepted by the Landlord, thus establishing a new, periodic, six month tenancy). What is created as a new periodic tenancy, however, may not last that long, at least when a commercial landlord/tenant in involved.

The right of a Landlord to terminate a commercial, periodic tenancy prior to the end of its periodic term was reinforced by the Supreme Court of Ohio in Maggiore v. Kovach, 101 Ohio St.3d 184, 803 N.E.2d 790, 2004-Ohio-722. The specific issue in Maggiore was whether one month's notice was required to terminate a commercial month-to-month periodic tenancy. The Court acknowledged that Ohio Revised Code Section 5321.17 requires a landlord or tenant in a residential periodic tenancy to give seven days notice to terminate a week-to- week tenancy and thirty days for a month-to-month tenancy. However, the Court in Maggiore found that R.C. 5321.17 applies only to residential leases. As such, it concluded that commercial landlords are not required to give tenants thirty days notice to terminate a month-to-month periodic tenancy. The court found that the only notice necessary was the three-day notice required by R.C. 1923.04 in forcible entry and detainer actions.

The final determination in a holdover situation is price (i.e., rent). If the lease is silent, courts would look again to the action of the parties. If the tenant pays the same rent as called for in the original lease and the landlord accepts it, the original lease rent would be the amount due for the holdover period. On the other hand, if the landlord calls for rent in addition to the original lease rental, the holdover tenant would not be liable for the difference if the tenant dissents and fails to pay the increase. See Steiner v. Minkowski, 72 Ohio App.3d-754 (1991).

The Eleventh District Court of Appeals in Brunswick Limited Partnership v. Feudo et al., 171 Ohio App.3-369, 2007-Ohio-2163, recently confirmed Ohio’s general rule regarding holdover rent, when a commercial lease is not silent- the rent is what the lease says it is.

The landlord and tenant in Brunswick, both agreed that a rate of double the minimum rent, plus any additional rent was expressly designated “holdover rent” in the lease. According to the tenant in Brunswick, however, a holdover clause providing for double rent is unconscionable and should not be enforceable. According to the landlord in Brunswick, a provision calling for double rent during a holdover is not an illegal penalty provision, or an unconscionable provision, but an enforceable liquidated damages’ provision.

The Court in Brunswick agreed with the landlord, by first reiterating the general law regarding rental agreements. Quoting Ohio Revised Code Section 5321.05, the Court stated that “a landlord and a tenant may include in a rental agreement any terms and conditions, including any term relating to rent, the duration of an agreement, and any other provisions governing the rights and obligations of the parties that are not inconsistent with or prohibited by Chapter 5321 of the Ohio Revised Code or any other rule of law.

The Court in Brunswick also distinguished a previous decision of the 11th District (Village Station Associates v. Geauga Company, 84 Ohio App.3d (11th Dist. 1992) that held a specific holdover clause in a commercial lease providing for double rent to be unconscionable and unenforceable. The Court in Brunswick distinguished the Village Station case on the basis of differing facts. The issue in Village Station was whether the double rent called for in the Village Station lease should accrue for the nine day holdover period, or for thirty days, since the Village Station lease contained confusing language indicating that a holdover tenant would be a “tenant by will and by sufferance, on a month-to-month basis”. The Village Station case interpreted the holdover provision as creating a tenancy at-will, not a month to month tenancy, and therefore, the tenant was only obligated to pay double rent for the nine day holdover period.

The Court in Brunswick did acknowledge that evaluating whether a holdover provision constitutes an illegal penalty provision or a valid liquidated damages provision will depend on the facts and circumstances of each case. However, the Court in Brunswick reiterated that Ohio Revised Code Section 5321.06 is the overriding legal principal applicable in these cases.

As a practical note, the landlord in Brunswick crafted a holdover provision that landlords and those representing landlords may want to follow. The Brunswick holdover provision was as follows: “if Lessee . . . shall remain in possession of all or any part of the Premises after the expiration of the term of this Lease, no tenancy or interest in the Premises shall result therefrom but such holding over shall be an unlawful detainer and Lessee shall be subject to immediate eviction and removal, and Lessee shall pay upon demand to Lessor during any such period which Lessee shall hold the Premises after the term has expired, as rent for said Premises, a sum equal to all items of additional rent provided for in this Lease plus an amount computed at the rate of double the minimum base rent for such period.” The Brunswick language clarifies that there is no tenancy whatsoever, and sets the amount due for any holdover time. Tenants, on the other hand, will want to draft language to the effect that a tenancy from month-to-month is established, at the same rate as the original lease.

The overriding morale of the story to these cases is “Watch your language with holdover provisions and penalties in commercial leases.”

Green Building Codes: the alternative to LEED and other ratings systems

The article below was prepared by Scott Wick, summer associate with Kohrman Jackson & Krantz:

LEED (Leadership in Energy and Environmental Design) is a certification system developed by the U.S. Green Building Council (USGBC) to measure how successfully a building meets various environmental standards. Although acting with the best intentions, many local government officials push for LEED certification in a development project without truly understanding the consequences of such requests. This phenomenon illustrates two common misperceptions about LEED. First, green building and LEED are not synonymous; LEED is merely one of many available green construction alternatives. Second, LEED is not a standardized design guideline intended to replace building codes.

One criticism of LEED and other similar rating systems, such as Energy Star or Green Globes, is that these certification programs cannot be incorporated into building codes and are not specific enough to serve as model building guidelines. In light of these inadequacies, other organizations are developing true model “green” building codes and other guidelines that may work better than a rating system such as LEED for a particular project. These efforts are especially important if, as architects and climate experts claim, no single policy would be better for the environment and saving energy than the creation of green building codes.

Some state and local governments have developed and implemented green building codes. States like California and Florida, or cities like Austin, Texas, represent the cutting edge of local green development standards. However, most states require only minimum building standards and leave the adoption of building codes to local governments. In turn, the majority of local governments adopt a code from one of the family of codes developed by the International Code Council (ICC), a non-profit organization that developed the International Building Code.

The ICC is one of the key organizations working to develop green building standards. In January of 2009, the National Green Building Standard, a collaborative effort by the ICC and the National Association of Home Builders, was approved as an American National Standard for residential construction. Building on that success, the ICC has now teamed with the American Institute of Architects (AIA) and ASTM International in the International Green Construction Code (IGCC) initiative. Reaching beyond the limited scope of programs like LEED, the goal is to develop a green code specifically for commercial construction that is specific, reliable, and enforceable and reduces or eliminates the need for post-construction certification programs.

Leading green organizations, such as the USGBC and the Green Building Initiative (GBI), support the IGCC initiative. That the USGBC, the developer of LEED, supports the IGCC initiative reinforces the fact that such rating systems were never meant to and cannot replace standard building codes. Programs such as LEED, Energy Star, and Green Globes have been instrumental in raising awareness of the need for environmentally friendly and energy saving construction methods. It is clear, however, that the future of green development rests in the development and implementation of building codes that incorporate true green standards.

As noted, most states leave the adoption of building codes to local governments. Across the nation, awareness continues to increase and the desire to incorporate environmentally friendly and energy saving principles into development projects is obvious. Accordingly, it is essential that local leaders understand basic principles of green building and familiarize themselves with available resources. The IGCC initiative represents an important step that upon completion will provide local governments with an additional resource that will offer greater flexibility in implementing green building standards at the local level.

While rating systems such as LEED remain a viable alternative, it is essential to understand that LEED is only one of many options. When considering green development, it is advisable to investigate all options, their respective costs to a project and the potential result that will actually be achieved by each option before proceeding. If a certification program is deemed the best choice, it is important to understand that LEED is not the only available rating system. However, at a broader level, it is important to see that there are alternatives to rating systems. Increasingly, local governments are adopting green building codes as a means of achieving specific and reliable green standards to save energy costs and to reduce environmental impact. Rather than added administrative costs to determine post-construction whether a project meets varying standards, the development and adoption of a green code can provide specific and enforceable guidelines to meet standards specific to and important at the local level.

For more information on developing green building codes, check out the following:

Need to Enforce Your Utility Easement? - Your Day in Court May Now Be Your Day In Front of the Public Utilities Commission of Ohio

Last month, a dispute over the Illuminating Company’s (the “Company’s”) right to remove a tree within the Company’s easement was heard by the Supreme Court of Ohio in Corrigan v. Illuminating Company, Slip Opinion No. 2009-Ohio-2524.

As aptly put by Judge Lanzinger, who authored the Opinion, “[a]t first glance, this case appears to concern the fate of a single tree. The larger issue, however, is who controls that fate - the Court of Common Pleas or the Public Utilities Commission of Ohio [‘PUCO’].” In a 4-3 decision, the Supreme Court of Ohio overturned the prior rulings of the Cuyahoga County Court of Common Pleas, and the Eighth District Court of Appeals and held that the PUCO gets to control the fate of the tree. Troubling to many, however, is that homeowners contracting with utility companies (in the form of an easement) may no longer have their day in court, but will need to trust the PUCO to fairly resolve disputes regarding easement rights and obligations.

The majority in this case, however, indicated it was not intending to “put the courts out of business” in every utility easement matter. Quoting earlier cases on the subject, the court in Corrigan stated that “the broad jurisdiction of PUCO over service-related matters does not affect the basic jurisdiction of the Court of Common Pleas in other areas of possible claims against utilities, including pure tort and contract claims”. The majority’s distinction appears blurred, however, since a claim regarding a service/maintenance easement provision would constitute a contract claim as well as a service related claim. Reviewing the facts of Corrigan does not help much in understanding the distinction the court is trying to make when contract claims are involved.

The Corrigan case involved a dispute between the Illuminating Company and the Corrigans of Brooklyn, Ohio. The Illuminating Company told the Corrigans that it intended to remove a large maple tree that was on the Corrigan’s property, but within an easement giving the Illuminating Company the right to “cut and remove any trees, shrubs or other obstructions upon the…property which may interfere or threaten to interfere with the construction, operation and maintenance of the Illuminating Company’s transmission lines”. Additional facts in evidence indicate that (i) the maple tree stood within the easement for at least the last fifty (50) years, and (ii) from 1975 to 2000, the Illuminating Company pruned the tree away from the transmission line. In 2000, however, the Company changed its policy in favor of removing vegetation from within its easements. (The evidence showed that after 2000, when the Illuminating Company stopped pruning the tree, the Corrigans pruned the tree on their own, and injected it with a slow growth hormone to stave off further growth and interference with the transmission lines.) When the Company informed the Corrigans in 2004 that it intended to remove their tree, the Corrigans filed their action in Cuyahoga Common Pleas Court.

The Cuyahoga Common Pleas Court, the Eighth District Court of Appeals, and three dissenting judges of the Ohio Supreme Court believed that the courts should have jurisdiction over this matter, not the PUCO.

All of the judges, however, (dissenting as well as concurring), agreed that the “two part test” developed in Allstate v. Cleveland Elec. Illum. Co., (119 Ohio St.3d 301; 2008-Ohio-3917) should be applied to determine jurisdiction in these cases. The two part test is as follows:

1. Is PUCO’s administrative expertise required to resolve the issue in dispute; and

2. Does the act complained of constitute a practice normally authorized by the utility?”

If the answer to either question is in the negative, the claim is not within PUCO’s exclusive jurisdiction. The majority in Corrigan believed both parts of the test were met. It reasoned that the first part of the test was met because the Ohio Administrative Code requires inspections by utility companies at least once a year and the inspections are to be conducted in accordance with programs establishing preventative requirements for the utility to maintain safe and reliable service, which programs would include vegetation control. Because the Illuminating Company’s decision to remove a tree is governed by its vegetation management plan and that plan is regulated by the PUCO, the court concluded that PUCO’s expertise is required to resolve the issue of whether removal of a tree is reasonable. Since vegetation management (the act complained of) is necessary to maintain safe and reliable service, as established (and thus, authorized) in Ohio’s Administrative Code, the second part of the test, (according to the court in Corrigan) is satisfied.

With all due respect to the “Corrigan majority,” it appears that the reasoning proffered by the Eighth District Court of Appeals and the Corrigan dissenting judges offers the better argument to “who controls the fate of the tree”, and less of a potentially chilling effect on utility easement enforcement. In his dissenting opinion, Justice O’Donnell first agrees with the majority and the State ex. rel Ohio Edison Co. v. Shaker case (68 Ohio St.3d 2009, 2011 (1994), reiterating that “because PUCO has exclusive jurisdiction over service-related matters, does not diminish the basic jurisdiction of the Court of Common Pleas over other areas of possible claims against utilities, including pure tort and contract claims”. However, Justice O’Donnell (and the judges concurring in the dissent) maintains that the PUCO has no special expertise with respect to interpretation of an easement, and that the Company’s right to remove the Corrigan’s tree depends on the terms of the easement, not the utilities’ internal vegetation management plan. What worries Justice O’Donnell, worries this author. The fact that the Ohio Administrative Code requires a utility company to have a vegetation management plan should not mean that the utility company is authorized to implement that plan without regard to the terms of an easement negotiated and agreed to by a utility company and a property owner. Since utility easements usually include service/maintenance related (contract) provisions, the potentially disturbing effect is that property owners may not be able to fall back upon the right to bring to a court of competent jurisdiction, most utility easement -- enforcement and interpretation issues.

At first glance, “who controls the fate of a single tree - the Court of Common Pleas or the Public Utilities Commission of Ohio” may well be the larger issue as characterized by the majority in Corrigan. The largest issue, however, seems to be that the fate of trees, or any other potential obstruction in a utility easement (e.g., underground springs, mineral deposits, other vegetation, slopes) may no longer be in the hands of the parties to a utility easement agreement when they seemingly agree, or to the courts, when they don’t agree; but to administrative policies and commissions.

CLE Update: Construction Law

The Ohio State Bar Association is sponsoring the 2009 Ohio Construction Law Forum on September 2, 2009 in Columbus, Ohio at the OSBA's offices, 1700 Lake Shore Drive. A live webcast will also be provided (

The Forum provides for a total of 6.0 CLE hours. Topics include:

  • Construction Contracting

  • Bid Disputes on Public Projects

  • Contractor Administration and Labor/Employment Issues

  • Construction Stimulus

  • Ohio Construction Reform Panel: Recommendations & Issues

  • Round Table Discussion on Current Construction Law Issues

For more information or to register: call (800) 232-7124 or (614) 487-8585, or visit online at

LEED: The Good, Bad and Ugly

The following article was prepared by Scott Wick, summer associate at Kohrman Jackson & Krantz:

LEED (Leadership in Energy and Environmental Design) is a widely recognized but often misunderstood program in the world of “green” construction. Many times local government officials and others will push for LEED certification in a development project with all the best intentions but without truly understanding the consequences of such requests.

What follows are some points that demonstrate the good, the bad, and the ugly of the LEED program.

I. LEED Is a Certification Process

LEED is a certification system developed by the U.S. Green Building Council (USGBC). The purpose of LEED is to measure how successfully a building meets various environmental standards, such as energy savings, water efficiency, and reduction of carbon dioxide emissions. The newest version of LEED (LEED v3), introduced in early 2009, rates building projects on a 100 point scale (plus 10 possible bonus points for region specific concerns and design innovation). The better the score, the higher the level of LEED certification:

  • Certified (40-49 points)
  • Silver (50-59 points)
  • Gold (60-79 points)
  • Platinum (80 points and above)

II. LEED Is Not a Substitute for Building Codes

A common misperception is that LEED is a standardized design guideline intended to replace building codes. However, LEED is not meant to be a building code substitute -- it is simply one method of certifying that a building’s design and construction meet various green standards. LEED represents the cutting edge of green development, not a baseline for all construction projects. The simple truth is that LEED is not the answer for every situation. Even when LEED is an option, it is only one of many available alternatives.

III. The Good

The goal of LEED is a good one. The promotion of green building programs helps to raise awareness and bring about real change that has a positive impact on the environment. The LEED process is rigorous; from the initial design stage, through construction, and ultimately in certification, LEED projects are undeniably greener than building only to code. LEED has been instrumental in helping more and more builders become aware of and interested in building green. In fact, recent studies demonstrate that green building has actually increased despite the current market realities in the construction industry.

IV. The Bad

Despite the positive impact of LEED, there are many factors to consider when deciding whether LEED is a good fit for a specific project. The inherent cost is an obvious factor. Generally, LEED certification results in a 1-10% increase in total project costs. And it is important to note that these figures are not compared only to building strictly to code, but also to similar green projects that are not LEED certified. The reality is that the money used to pursue the LEED certification could often be better spent on the construction itself to allow for additional green concepts that might otherwise be unavailable due to limited funding. In other words, money spent on LEED certification could be spent on other materials or procedures to make a project greener. The same study which demonstrated that green building is on the rise also showed that most builders’ view of LEED has become less favorable.

V. The Ugly

The reality with the LEED program is that builders are able to manipulate the certification system in a manner so that a project earns LEED certification without having a truly significant environmental impact. It has been demonstrated that some LEED certified projects have achieved as little as a 14% improvement in environmental impact over standard construction. Although not the norm, the reality is there are many LEED certified projects that are green in name alone. This is especially true in comparison to proven green builders who spend less on administrative costs and labels and invest more money directly into truly green changes. This reality demonstrates the true ugly side of LEED -- the real problem is not with the program itself but rather how people see LEED. The worst scenario is being a slave to labels or blindly turning to LEED, believing that it is the green replacement for building codes or that it is the only way to build green.

VI. Leed is not the only option

The introduction of LEED has had a positive impact on green building . However, green building and LEED are not synonymous. The reality is that LEED represents only one of many green construction alternatives. Other organizations are developing true model 'green' building codes and other guidelines that may work better for a particular project. Before choosing to pursuing LEED certification, it is advisable to investigate all options, their respective costs to a project and the potential result that will actually be achieved by each option before proceeding.

Environmental Liability Insurance

By: Mary S. Busby, Esq.
Environmental Practice Leader- Oswald Companies

Environmental Liability 101 – Real Estate

Environmental consultants performing Phase I Environmental Site Assessments to the All Appropriate Inquiry (AAI) Standard (ASTM 1527-05), know that the primary reason for performing these assessments is to help the client achieve a defense to CERCLA liability (e.g., innocent purchaser). We can often lose site of that in the hurry to get financing or close a deal, especially on such a tight budget. CERCLA makes an owner or operator of property liable for pollution conditions at, under or migrating through that property. This liability is “strict” and attaches without regard to fault. Although it has yet to be fully tested in court, the AAI Phase I ESA should allow a purchaser of property to assert that it did not know about adverse conditions (was innocent) at the property when it bought it, and therefore, it should not be held liable for those conditions.

So much environmental liability rides on the Phase I report, which costs on average about $2,700 and is often prepared in less than a two-week timeframe. When our clients stop to think about it in that light, it becomes clear that it would be risky to place all of their reliance on that one document.

Real estate attorneys will draft what are ostensibly iron-clad indemnifications that many clients also rely on to help them avoid environmental liability. For example, the seller may agree to hold the buyer harmless and indemnify the buyer for any environmental conditions existing at the property prior to sale. An indemnification is nothing more than a contractual right to sue and is only as good as the financial strength of the party giving it and the willingness of that party to abide by the terms of the contract. It does not provide any more liability protection than that. When things fall apart, it amounts to an invitation to litigation.

Once a client looks at the Indemnification in that light, both the client and the attorney realize it would be best to proactively engage in litigation avoidance. That is what insurance provides.

What Environmental Liability Insurance Covers

The broadest policy form will cover on- and off-site cleanup for new and preexisting conditions. It will also cover third-party claims for bodily injury and property damage as a result of those conditions. It will cover non-owned locations (such as non-owned disposal sites) for cleanup, bodily injury and property damage. It will also cover cleanup, bodily injury and property damage liability for pollution conditions arising from transported cargo or waste. In addition, the policy will cover business interruption suffered as a result of pollution conditions. None of these things are expressly meant to be covered on any policy other than an environmental liability policy.

You should advise your clients to seek the advice of a trusted insurance broker that specializes in environmental coverages, as it requires expertise in environmental and contract law. We often negotiate “manuscript endorsements” that we craft as a part of the insurance contract. As a trusted advisor, you would not want to recommend that your client seek the advice of a generalist on this subject.

The most overlooked reason for buying environmental liability insurance is legal fees. Legal fees are often the most costly portion of an environmental claim. Your client does not have coverage for the cost of these fees on any other insurance policy that it has and will be out of pocket for its defense costs if it does not have an environmental liability policy.

Case Study – Green Acre

This case is still in litigation. A small real estate developer wanted to purchase a vacant lot to build a strip center. He had an AAI Phase I performed, and no RECs were found. After purchasing the property, the EPA swooped in and took Corrective Action under RCRA against the new property owner, holding him liable for the cleanup of a 40-acre former RCRA facility. This buyer did everything (except one thing) right. What happened was that his one acre was the 40th acre from fence line to fence line of the former facility, and a 10-day storage pad (39 acres away and downgradient) at the facility had run afoul of RCRA. The former owner of the facility was gone, and the land was in Receivership. This innocent purchaser under CERCLA was the first to purchase a piece of the bankruptcy estate, and was the equivalent of the “Last Man Standing.”

The first question that I usually get asked when I tell this story, is “Did the environmental consultant have good Errors and Omissions Insurance?” I respond by stating that the environmental consultant was arguably correct in finding no RECs. The 10-day pad was 39 acres away and downgradient and very unlikely to have an adverse impact on the green acre that was the subject of the Phase I.

Now the innocent purchaser, who resembles many of your average clients, has completely lost the value of his real estate purchase, as he into the hundreds of thousands in legal fees. Had he simply gone one step farther and bought an environmental liability policy to cover this property at the time of purchase, his legal fees and ultimate liability would be covered.

A site with no RECs is inexpensive to cover, and is usually a drop in the bucket when compared to the value of the deal. Full coverage could have been placed for less than $10,000. This client is angry and ready to sue his consultants, his lawyers and anyone else he can find who led him into his current circumstance. This could all have been avoided.


Environmental Liability Insurance is one highly advisable component to any transaction involving real estate. As a trusted consultant, it is in both your clients’ and your best interests to guide them to the other experts that can help them.

For additional information, please contact Mary Busby at Oswald Companies at 216-367-4920 or at

Mortgage Meltdown - Causes Aren't What You Think

Mortgage foreclosures have been increasing exponentially since 2007. The common practice has been to blame subprime mortgage lenders and the so-called 'liar loans.' However, an analysis of loan-level data from McDash Analytics, a component of Lender Processing Services Inc., paints a vastly different picture.

The analysis was conducted by Stan Liebowitz, a professor of economics and director of the Center of Analysis of Property Rights and Innovation in the management school at the University of Texas in Dallas. The loan-level data from McDash Analytics is the largest source of such data available, covering more than 30 million mortgages.

Mr. Liebowitz's analysis indicated that the most important factor, by a large margin, related to foreclosures is the extent to which the homeowner now has or ever had positive equity in a home. Although only 12% of homes had negative equity, they comprised 47% of all foreclosures.

As reported by the Mortgage Bankers Association, 51% of all foreclosed homes had prime loans, not subprime. Also, the foreclosure rate for prime loans grew by 488% as opposed to a growth rate of 200% for subprime foreclosures.

Other factors that had some impact on foreclosures are FICO scores (i.e., creditworthiness), income levels, unemployment rates and whether the house was purchased for speculation. However, the 2 villains of the foreclosure mess, teaser rates and liar loans, had virtually no impact on foreclosures.

This data is important because most of the 'solutions' being pushed by various lawmakers and others are directed at the teaser rates, liar loans and other subprime issues that have no significant relationship to the mortgage meltdown and therefore cannot reasonably be expected to solve the problem.

For more information, check out Stan Liebowitz's article* published in the Wall Street Journal on July 3, 2009.

*links to WSJ articles online generally go stale in a week.

Real Estate Law 101 -- Easements

An easement is a common mechanism used in real estate law. An easement is the right to use or to control activities on the property of another. By definition, you cannot hold an easement on your own land. A typical example of an easement would be the easements provided to utility companies.

A "servient tenement" is the land that is subject to the easement. A "dominant tenement" is the land that is benefitted by the easement. The owner of the servient tenement has full use to the land to the extent that the use is not inconsistent with the easement owner's reasonable enjoyment of the easement.

There are 2 types of easements; "appurtenant easements" and in "gross easements". Appurtenant easements run with the land and whomever owns the land that controls the dominant tenement benefits from the easement. An example of this might be a landlocked owner's easement right to cross adjoining land in order to access the street. Should that owner transfer his or her parcel of land, the ingress and egress easement across the adjoining property would transfer with the parcel of land.

In gross easements do not run with the land, with ownership of the easement being independent of ownership of any parcel of land. An example would be utility easements controlled by utility companies.

Easements are presumed to be perpetual unless there is specific language in the grant of the easement that indicates otherwise. How an easement is worded is crucial as language and intent will govern. If a court become involved in an action to enforce an easement, it will not look beyond the wording in document granting the easement unless it finds the language to be ambiguous.

The easement owner has a duty to maintain its easement. If there is an express agreement relating to maintenance regarding an easement, the courts will enforce it.

When negotiating an easement agreement, the parties need to carefully consider the wording of the easement to clearly state the intent, what it covers (e.g., including a sufficiently accurate description so a surveyor can locate it on a survey), address whether it is an exclusive easement or not, and address any other duties or restrictions necessarily related to the easement..

Thanks to Scott Wick, summer associate at Kohrman Jackson & Krantz for his assistance in the preparation of this post.

Paying Off Your Mortgage Early

Below is a link to an article at titled "How to painlessly prepay a mortgage and save thousands" by David Myers, which covers safe and easy ways to pay down that debt.

Click here to access the article.