**2. Overview of Easement Laws in Tennessee**
Easements are rights granted by one property owner that allow the holder to use an area of land that they do not own. Commonly, an easement is in place, for instance, to allow a utility company to have access to a power line or piping for maintenance, or they can sometimes include the right of passage, such as driveway easements between neighboring properties. In Tennessee, this remains an issue of higher concern because the state has no active laws that help to govern the terms of these legal arrangements.
Essentially, driveway easement laws in Tennessee make it so that property owners that are landlocked by other property owners can have access to exit by one route, so long as the described route does not significantly add to the distance being traveled . Tennessee considers roadways to be private property, where city or county governments will not provide the maintenance. As easements are typically considered real property, they can often be lost through adverse possession, such as when someone encroaches on a property line. However, the individual filing for an adverse possession case has to show, among other things, a continuous trespass on the property that lasts for seven consecutive years, at which point a prescriptive easement becomes a right, which is why it is important to understand the laws around easements in detail.
**3. Common Types of Easements for Driveways**
There are several types of easements that can affect driveways in Tennessee. Those are express, implied, and prescriptive easements. Each will be discussed below.
Express Easements
An easement by express grant is created by deed or some other writing that clearly and plainly states how the easement is to be used and for what purposes. The granting language in the document will determine the scope of the express easement, i.e., whether the easement for a driveway will be used for commercial purposes, served by utilities, as well as many other rights to be exercised.
Implied Easements
A court may determine that an easement exists based on the presence of certain factors. The most common basis for an implied easement is the doctrine of prior use. Under that doctrine, if an owner uses a portion of its land in a manner that is obvious to the use of the servient owner that it is being used, then when that land is divided, a private easement is created for the benefit of the dominant estate.
For example, if a property owner has a driveway adjacent to its home that traverses a portion of the property of an adjacent property owner to access the neighborhood street, it is obvious to the adjacent property owner that the driveway is being used. If that adjacent property owner has knowledge of such use before the sale, then an implied easement is created for the benefit of the dominant estate.
Prescriptive Easements
A precription easement allows the owner of the dominant estate to use a portion of the servient estate as if the owner of the servient estate owned it, and the owner of the servient estate was prohibited from using it. It is very similar to adverse possession, where the owner of the dominant estate must establish continuous occupation that is hostile, visible, open, apparent, and exclusive. The most notable distinctions between a prescriptive easement and adverse possession are (1) the burden of proof, and (2) the length of time required for the dominion owner’s exclusive use. In a prescriptive easement, the burden of proof is on the owner of the dominant estate to establish the elements listed above. Under the doctrine of adverse possession, the burden of proof is on the owner of the servient estate to establish those elements. Also, the period of time for which the elements must be established is fewer than that required for adverse possession.
**4. Legal Conditions for Establishing Easements**
As a matter of law, an owner conveys an easement to the owner of a dominant estate in a separate instrument or in the language used in a deed or in the absence of a deed, that owner must expressly or impliedly grant the right of use in order to create an easement. One can create an express easement for the benefit of the dominant estate by a deed executed, attested, sealed, and delivered by the grantors to the grantees describing the easement. There must be compliance with T.C.A. § 66-5-101 which provides that an easement may be created by deed, lease, devise, or reservation. There are therefore requirements of form, execution, delivery and consideration as well as the creation of an easement in gross which is where the easement exists for the benefit of the owner or tenant not the land. One can also create an easement by prescription where it must be established that the use has been open, visible, continuous, exclusive, and uninterrupted for more than twenty (20) years. See T.C.A. § 28-2-103 and the cases of Taylor v. King, 698 S.W.2d 349 (Tenn. App. 1984) and Shields v. Sullins, 979 S.W.2d 258 (Tenn. App. 1998). However, the right of way must be definite as to point of entry and point of exit. See Brown v. Kentucky State Bank, 168 S.W.2d 568 (Ky. 1942). An easement may also be created by implication where it must be established that the servient estate and the dominant estate at one time under one ownership and that the easement is so indispensable to the realty that it can "almost be said to have been granted by operation of law". See Sutherland v. Bass, 520 S.W.2d 795 (Tenn. App. 1974). It cannot then be conveyed, for it has been acquired by operation of law. T.C.A. § 66-5-102.
**5. Rights and Duties of Easement Holders**
As an easement holder in Tennessee, you acquire additional property rights but you also assume the responsibility to protect the underlying property due to potential harm the easement may cause. An easement holder does not have carte blanche to do as it wishes with the easement area. For example, in a driveway easement context, an easement holder cannot build buildings in the easement area or put in commercial structures. In some cases, they may be allowed in a commercial scenario (consider, for instance, an easement holder who is a shopping center owner but may have restrictions in a particular easement). Easement holders can use the easement area only as intended and as expressly stated in the easement deed. Easement holders also have the responsibility to keep their easement area free from debris and other hazardous waste materials. An easement owner cannot leave hazardous construction equipment in the area and not properly mark off the area or take other standard measures to ensure the safety of those who may cross the area. Easement responsibility at times may include taking measures to protect the underlying property from damage. Some issues arise with regard to how much maintenance the owner of the servient property must perform and what maintenance the easement holder must be responsible for. The property owner is responsible for reasonable maintenance of the easement area; the holder should be responsible for any additional upkeep and maintenance of the area. These duties are especially important for agricultural easements that require considerable upkeep and maintenance. Residences that may be situated near easements may require the need for additional protection and maintenance for safety purposes. Some easements will include built-in maintenance provisions that address these issues while others will not. Easement holders also have a duty to notify the property owner of any use of the easement that exceeds the scope of the easement. For example, if the use of the easement is intended for ingress and egress only and the easement holder builds a fence in the easement area, the property owner should be notified. Early notification can avoid many disputes.
**6. Resolving Easement Disputes**
Where people own land next to each other, boundary and easement disputes seem to be perennial sources of litigation. Perhaps the most common dispute between owners of land is over a boundary line. But a close second is a dispute over an easement on one property for the benefit of another.
While most easement owners are agreeable about letting the restricted activity happen on their property—driving a car through a neighbor’s driveway, for example—the ones who are not can cause real trouble. Like any other property right, an easement owner can abuse it. These land owners will ground their stand on some inappropriate basis like: In situations where the easement owner who is abusing his property can be made to see the legal merit of his neighbor’s position, a negotiation may resolve the problem. Here’s a novel idea: negotiate a deal with your neighbor before an easement issue arises. In Tennessee, landowners have to agree on the terms of an easement agreement . If the landowners do not agree, there is no enforceable easement. In Tennessee, an easement may not be acquired by an adverse possession. If that doesn’t work, try mediation. Mediation is a good option to pursue before resorting to litigation because it is probably much cheaper than a lawsuit, it maintains a good working relationship between the property owners and they can put the dispute behind them sooner. However, where a quick resolution of the easement issue cannot be achieved through negotiation or mediation, litigation may become necessary. Extreme as litigation may seem, particularly if you have a fostered a good relationship with your neighbor for years, it may be required if your neighbor holds an easement and is not honoring the terms of the easement agreement.
The results of litigation can be quite expensive in terms of both time and money. Litigation is time consuming and takes place over a long period of time.
**7. Adjusting or Revoking An Easement**
Resolving unfavorable or underused driveway easement agreements can often be achieved through modification. Modification is contract amendments, or substitutions that make the contract more suitable to the parties. In summary, modification means that the existing driveway easement agreement will be altered to add, subtract or otherwise change the terms of the original agreement to improve usability for the party in need.
Modification can also refer to equitable modification, which is a judicial remedy that grants a new right or amends the original contract to provide a new remedy. In other words, when an individual or the Court recognizes the new situation and no longer deems it appropriate to enforce the original contract or easement, the contract is said to be modified, terminated or declared by the Court to be null and void.
For example, pursuant to Tennessee law, modification of an easement to change the location is governed by T.C.A. § 20-14-102, which allows modification without an independent property action where such is required to correct an error in description of the easement.
As with other contracts, in addition to the rights attendant to modification or cancellation of your driveway easement, this must be done in writing and signed by the parties to be bound. Also, under Tennessee law, modifications for executory contracts that fall within the Statute of Frauds must comply with the statute as required under T.C.A. § 29-2-101, requiring written instruments to be signed by the party charged or his agent.
**8. Case Law and Legal Examples in Tennessee**
A closer look at case studies reveals how judges have ruled when driveway easements are involved. For instance, in the 2017 ruling of Stokes et al. v. Shoop et al., the Court of Appeals examined a property dispute involving arguments over the use of a driveway. The plaintiffs argued their actions needed to be compensated, as they improved an access to allow the Shoops and their one-year-old to have access to a parking lot allowing safe access to the street. However, the Court ruled that the plaintiffs should not be compensated, as the easement was implied so the Shoops could access their driveway . Another case, Ward v. Adkins in 2012, examined whether the easement gave Adkins’ neighbors sufficient access to their properties and whether the owner of the property even had permission to develop the easement. In the case, the judge ruled that the easement did give them rights to the lane as well, but that the easement did not grant permission for the owner to build onto the shared easement.
These past cases show how interpretations from case studies can vary due to ownership disputes, road maintenance concerns, easement documents and more.
