WATCH OUT FOR UTILITY TREE EASEMENTS

No matter where you live, whether it's in an urban area, a residential area or an agricultural area, you can appreciate the value of a tree. Trees do so much for us.

Obviously, they provide us with often much needed shade. But in addition to shade, they also help reduce soil erosion and prevent flooding. A mature tree can consume a substantial amount of water every day, thereby reducing flooding.

Sometimes, property owners must take legal action in order to protect their trees. This kind of legal action is more common than you might think.

A common problem that I wish to focus on in this column concerns utility easements on property. The easement may be for a common electric line, a telephone company line, or even a natural gas line. Many homeowners have property subject to these easements.

The easement allows the utility to run its line or pipe on, under or over a piece of property. In turn, the property owner, or its predecessor, is usually paid a small amount of money. In the case of a subdivision, often the developer receives the payment. The subsequent purchasers often receive no money, but must be forever burdened by the easement.

Utilities could never exist without these easements because their network of pipes and wires needs to reach out into the community and this can only be done through easements.

What I am referring to in this article is a common easement condition requiring that the ground in the areas of the pipes and wires be maintained so as to allow for repairs and inspections. Some utility companies are claiming they have a right to cut down trees, often mature trees, pursuant to this easement requirement.

The question is: Do you have to allow the company to enter your property and destroy your trees? The answer is maybe yes, and maybe no.

What follows are some factors that may resolve this question.

The first question concerns the utility easement language. How specific was the easement? Was it clear that trees can't be planted over the easement area? Or did it only require that if any vegetation exists, it be maintained in good order so that visual inspections can occur and physical access can take place?

Does the easement specifically provide for the right to remove trees? Or is this right being presumed by the utility company?

How long has it been since the last time that the utility sought to enforce its rights under the easement. If it has been decades, did the utility effectively forfeit its rights under the easement?

What is the purpose of the easement? Are less invasive means of satisfying its goals available other than tree removal?

Was the property use restriction properly recorded so that the property owner had a way of knowing about the restriction before the purchase was made. If not, it is possible that the restriction may not have legal force.

Sometimes these matters can be resolved through compromise. Perhaps a better maintenance campaign can resolve any concerns that the utility might have.

However, if the utility is dead set on removing mature trees from your property, you need to decide whether the value of those trees is worth seeking legal assistance. The utility will have an experienced lawyer. If you want to fight for your rights in court, you too will likely need one.

If your lawyer determines that you have a legal right to stop any tree destruction, there is a good chance that your lawyer will go into court and ask for an injunction. An injunction is a court order that stops the utility company from taking down any trees until the court has an opportunity to engage in further evaluation of the merits.

Injunctions are not easy to obtain. Your ability to obtain one will be largely dependent on an ability to demonstrate irreparable harm if an injunction is not granted as well as an ability to demonstrate that the legal issues are on your side.

The legal issues can be complicated and very fact specific. The key, however, is that simply because a utility claims a right to destroy your trees does not mean that it really has that right. I am a tree person who feels badly when mature trees are unfairly destroyed. I wish any one whose trees are at risk the best of luck.

Published: August 17, 2006

By Stuart Lieberman

Realty Times