On The Road Again: 3 Considerations for Access to Forestland, Vineyard, and Agricultural Property

Sponsored content by Stoel Rives LLP originally published by the Portland Business Journal, May 2022.

Though critically important, access—namely the ability to drive onto a property and haul equipment and commodities to and from it—is a feature of working forestland, vineyard, and agricultural properties that is often overlooked by even experienced purchasers. Access to such parcels is not a given due to the size and character of the property, and the remoteness from public roads. Landowners needing to cross the lands of others to get to their property often enter into informal agreements for access, but informal agreements do not provide certainty for future access and are difficult, if not impossible, to track. Thankfully, enforceable access can be obtained easily and efficiently through a formal, written easement.

An easement is a nonpossessory interest in property owned by another party that allows the holder of the easement to use someone else’s property for a specific purpose. The party granting the easement is the “grantor” and the party benefitting from or obtaining the easement is the “grantee.” Easements can be either perpetual or for a limited time and are generally irrevocable during that time, making them an effective tool by which forestland, vineyard, and agricultural property owners can obtain enforceable access to their lands. There are three key considerations to account for when drafting an access easement: its scope, the type of easement needed, and improvement and maintenance obligations.

Scope: Before entering into an easement agreement, the parties should clearly define what the easement is to be used for. If the language is too general, it can become difficult to determine the original parties’ intent in the future, especially when technology or scale of operations evolve. Both current and future anticipated use should be considered and clearly expressed. Importantly for forestland, vineyard, and agricultural property owners, commercial uses and access will almost always be required for the transportation of timber and agricultural products, vehicles and equipment, and other commercial activity—personal access rights are insufficient. Parties should also consider whether the easement should be exclusive, meaning that only the grantee is allowed to use the access easement, or whether it should be non-exclusive, meaning that the grantor can also use the easement so long as it does not interfere with the grantee’s use.

Type: There are two general types of easements: easements “in gross” and “appurtenant” easements. Easements in gross are for the benefit of the named grantee and not specific to any property. And if the property over which the easement is granted is sold, the easement will generally not continue, unless the document creating the easement clearly provides otherwise. By contrast, an appurtenant easement is an easement that benefits a specific parcel of land, such as when one property owner needs to build a road over a neighbor’s property to access the owned property. Appurtenant easements “run with the land,” meaning that if the burdened or benefitted property is sold, the easement will continue with that land, even though the new owner was not the party that granted or received that easement. It is important when drafting an easement to clearly identify what type of easement it is or risk a dispute and potential mislabeling of the easement.

Maintenance/Repairs: When dealing with forestland, vineyards, or other agricultural property it is important to clearly define which party is responsible for maintenance of and repairs to the easement area. If the easement allows the grantee to use an existing road on the grantor’s property, the easement should identify which party is responsible for routine maintenance of the road and who is responsible for repairs if the road is damaged. The easement should explain whether the grantee is responsible for damage to the grantor’s property because of the grantee’s use of the easement. Relatedly, many of these roads are rural in nature and may require improvements to handle increased load from tractor trailers, large equipment, and other commercial vehicles, and the easement should be clear about who is responsible for such improvements.

Easements are an effective and simple way of dealing with potential access issues on forestland, vineyard, and general agricultural land. And careful drafting can help parties avoid falling into the trap of having an easement that is at worst ineffective and at best detrimental to the underlying property or to the grantee’s goals.

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