Category: Real Estate

The case of the absent comma: Error Five in drafting easements

One common drafting error in easement agreements and other contracts is that the drafter doesn’t use exact language to describe what the contract allows, requires, or prohibits.  The grantee of a view easement is commonly paying for the right to prevent the grantor from building structures or allowing trees to grow in a certain area or above a certain height.  A 2018 case from Nantucket, Massachusetts, MacLean v. Conservation Commission of Nantucket, No. 17-P-746, Memorandum and Order (Mass. App. 2018) demonstrates what happens when the drafter squeezes too many concepts into not enough words.  Did the easement agreement prohibit all structures, or only tall structures?  A missing comma made the difference.

The plaintiff held a view easement over adjoining land on Nantucket Island.  The defendant’s property was subject to “a permanent and non-exclusive view easement which prohibits any and all structures and/or vegetation with a height greater than eight (8’) feet from existing grade upon and over said Lot,” for the benefit of the plaintiff’s property.  The defendant built a deck and a staircase to the beach, both less than eight feet high.  The plaintiff sued to force the defendant to remove the deck and staircase.

Both parties argued that the easement language was unambiguous, but they read it differently.  The plaintiff said that the clause unambiguously prohibited construction of any and all structures, but vegetation could be up to eight feet high.  The defendant said that the clause unambiguously allowed the defendant to have both structures and vegetation if they were less than eight feet high.

The trial court took the defendant’s view and held that the easement did not prohibit structures that were shorter than eight feet.  The court said that the eight-foot limit unambiguously applied to both structures and vegetation, which meant that structures and vegetation were both allowed.  The plaintiffs (the easement holders) appealed.

The court of appeals reversed the trial court and found the language to be ambiguous.  In the court’s words, “the absence of a comma after the word ‘structures’ combined with the use of the term ‘and/or’ makes it unclear whether the eight-foot height restriction applies only to vegetation or to structures as well.”

That was an expensive missing comma.

Did the drafter intent to allow short structures?  The drafter could have written the clause this way:

* * * a permanent and non-exclusive view easement which prohibits any structures and vegetation from exceeding eight (8) feet in height above existing grade upon and over said Lot.

By contrast, if the drafter had wanted to prohibit all structures, but to allow vegetation up to eight feet high, the drafter could have written:

* * * a permanent and non-exclusive view easement which prohibits:

            (a)        any and all structures upon and over said Lot, and

            (b)        any vegetation with a height greater than eight (8’) feet from existing grade upon and over said Lot.

Don’t be bashful about using numbered and bulleted lists in your easement agreements to make it clear to the reader what you mean. The court of appeals is an expensive proofreader of your work.

How to Misdraft an Easement Agreement: Error Six

Last year I wrote a book on how to draft easement agreements, giving practical advice to lawyers. I had the most fun with the next-to-last chapter, which I called “Ten Ways to Misdraft Your Easement Agreement,” where I described ten ways for drafters to mess up their agreements. The sixth error I wrote about is to not set standards for roads and utilities. If you are granting an easement to allow your neighbor to build a driveway and connect utilities through your property, describe how much driveway you’re allowing. Even if the easement area will be 30 feet wide, you may not expect your neighbor to build a driveway that looks like a public street, with curbs and a sidewalk. You can and should say something like “Within the Easement Area, Grantee may construct a paved driveway up to X feet wide” so that you’re allowing a driveway, not a highway.

Erica Menze and Dean Alterman co-present a seminar for the American Bar Association

Last month our partners Erica Menze and Dean Alterman joined Patrick Bartman of Baird Holm LLP to present a 90-minute seminar on negotiating and drafting leases and easements for the Real Property, Trusts & Estates (RPTE) section of the American Bar Association. The seminar is one in a series, “Lay of the Land,” that RPTE is presenting this year to provide practical technical advice to newer real estate lawyers.