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Avoid Platted Easements

Every developer who subdivides property, by plat or certified survey map (both of which I’ll refer to as “plats,”), eventually has to deal with the question of how to make provision for necessary utility easements. Frequently, municipalities, civil engineers, and surveyors suggest granting easements by placing a notation on the face of the plat itself. To do so avoids the need to negotiate, sign, and record separate easement agreements with each utility provider. Problem solved, right?

Although Wisconsin law does permit a property owner to grant an easement by placing a notation on a plat (see Wis. Stat. §236.295)—and while it may seem like pressing the “easy button”—it’s not the best practice. The problem is that, while the location of the easement is clear, the other terms and conditions of the easement are not. For example, can any public utility provider put its facilities in the easement area? Is the owner entitled to any prior notice? Does the easement extend to only below-grade facilities, or may the utility provider place poles and guy wires? What happens if the easement area is covered by landscaping, pavement, or other improvements: is the utility provider obligated to restore the surface? And while the location of the easement is clear, what happens if a future owner wants to move the easement area? Whose consent is needed? Platted easements are nigh-permanent and so difficult to alter, amend, or relocate that they deserve considerable, deep consideration.

The best practice is to enter into specific easement agreements with each utility provider, without any notation on the plat. This permits owners to negotiate changes directly with the provider, as and if needed in the future. If the municipality insists that an easement be shown on a plat, the better practice is to indicate “public utility easement governed by separate recorded instrument.” The location of the easement may be almost impossible to change in the future, but the terms are more easily susceptible to amendment. Finally, if the municipality does not grant the developer even the middle-level of flexibility, then it is important to carefully consider and explicate the easement terms on the face of the plat itself. Consider adding requirements to address the concerns outlined above: being as specific as possible about the types of utility providers entitled to use the easement area; requiring reasonable notice prior to entry; requiring that utility facilities be located below grade; and giving due consideration to ancillary rights and duties of the easement beneficiary with respect to trimming vegetation, restoring the surface, and shared maintenance obligations. Future generations will thank you for it.

DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.

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