In its simplest form, an easement is a “right of use”. The legal definition in ORS 105.170 is a bit more arcane:
Easement means a nonpossessory interest in the land of another which entitles the holders of an interest in the easement to a private right of way, embodying the right to pass across another’s land.
Holders of an interest in an easement means those with a legal right to use the easement, including the owner of the land across which the easement passes if the owner of the land has the legal right to use the easement.
From these definitions spring several legal rights and duties. For example, the holders of an interest in any easement are required to keep it in good repair. The cost of doing so is required to be shared by each interest holder pursuant to the terms of their written agreement, or a document (or memorandum thereof) recorded in the real property records of the county in which the easement is located.
But what if the easement is not recorded on the land, and a purchaser buys it in good faith, not knowing of the arrangement? The answer is simple and straightforward; the easement is not enforceable against them, since they had no prior notice. However, ORS 105.175 provides that the “(f)ailure to record the agreement shall not affect the enforceability of the agreement among the parties to the agreement and any other person with actual notice of the agreement.” (Emphasis added.)
As with many laws, however, the devil’s in the details. Suppose a purchaser buys a property over which there is no recorded easement, but across the back of the lot is a gravel road that traverses the property. The roadway is used by the adjacent neighbor to access a highway, a quarter-mile away. The seller does not mention the purpose of the road, and the buyer does not ask. Does the buyer have “actual notice” under the statute? This is the stuff of lawsuits; how much notice is necessary to be considered “actual notice”? Can notice be given by a reference found in a document in the chain of title? What if the owner rarely visits the property, and lives elsewhere? The answers to questions like these are very fact-based. They affect not only the right of access, but also the duty of maintenance, and unless a voluntary settlement is reached, the matter may be destined to court for the judge to sort out.
Generally, the cost of maintaining an easement in the absence of an agreement, or in the absence of maintenance provisions in the recorded easement itself, is required to be shared by each holder of nn interest in the easement in proportion to the use made by each of them.
In determining “proportionate” use, ORS 105.175(4) imposes the following guidelines:
- The frequency of use and size and weight of the vehicles used by the respective parties.
- Unless inappropriate, based on the use, size and weight of vehicles, or other relevant factors, costs for normal maintenance of the easement and costs of repair of the easement damaged by natural disasters or other events for which all interest holders are blameless, may be shared on the basis of percentages resulting from dividing the distance of total normal usage of all holders of an interest in the easement into the normal usage distance of each holder of an interest in the easement.
- Those holders of an interest in the easement that are responsible for damage to the easement because of negligence or abnormal use are required to repair the damage at their sole expense.
Of course, in an imperfect world, not all easement disputes are amicably resolved out of court. Accordingly, ORS 105.180 fills the void with the following “rules of the road”.
- If any holder of an interest in an easement fails to maintain it contrary to:
- An agreement; or,
- The maintenance provisions of a recorded easement instrument; or,
- In the absence of an agreement or recorded instrument imposing the maintenance obligation, fails after demand in writing to pay the holder’s proportion of the cost as indicated in ORS 105.175 (3) and (4), a civil action for money damages or specific performance or contribution may be brought against that person in the Oregon circuit court, by one or more of the other holders of an interest in the easement.
- In any such civil action, the court may order such equitable relief as may be just in the circumstances.
- Nothing under the Oregon statutory scheme (ORS 105.170 – 105.185) imposes a maintenance obligation on the holder of an interest in an easement based on the maintenance provisions if the easement holder is not a party to it (whether the instrument is recorded or not), after such holder ceases to use the easement.
- The prevailing party in the litigation may recover all court costs, arbitration fees and attorney fees.
- At any time before, during or after, the maintenance work has been performed, any holder of an interest in the easement may apply to the circuit court in the county in which the easement is located (and has jurisdiction over the amount in controversy) for the appointment of an impartial arbitrator to apportion the cost, and the matter may be arbitrated in accordance with Oregon laws (ORS 36.600 – 36.740).
- The above provisions apply to all easements existing on, or created after, January 1, 1992; however, they do not apply to rights of way held or used by providers of public services (e.g. railroads, pipeline companies, public utilities, electric cooperatives, people’s utility districts, water utility districts, municipally owned utilities and telecommunications utilities, when used for the sole purpose of provision of service or maintaining or repairing facilities for the provision or distribution of service). ~Phil
[HyperLynx suggests the following related easement article: http://q-law.com/easement-essentials-oregon-homeowners/]
 The failure to include maintenance provisions and cost sharing in a recorded easement is not, in my opinion, consistent with the standard of care for Oregon real estate lawyers drafting such documents.Posted in Broker Risk Management, Easements, HyperLynx, Legal Drafting, Legislation - Oregon, Real Estate General, Real Estate Laws, Realtor Risk Management, Residential Housiing | Tagged Real Estate, Realtors