Utility Easements in South Carolina, 0715 SCBJ, SC Lawyer, July 2015, #26

Author:Jessica Clancy Crowson and Christopher L. Boguski
 
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Utility Easements in South Carolina

No. Vol. 27 Issue 1 Pg. 26

South Carolina BAR Journal

July, 2015

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0What to Know When Buying Property That May Have Existing Utility Easements

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Jessica Clancy Crowson and Christopher L. Boguski

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Buying property can be an exciting time for a purchaser. When looking to buy property many people spend a great deal of time considering things such as location, price and amenities. However, countless potential property owners fail to consider or determine the presence of utility easements on a parcel of property and the potential impact of such utility easements. Failure to understand the exact location, scope and nature of existing utility easements on property can lead to disastrous results for a property owner. Property owners and utility easements can certainly co-exist on the same property in harmony; however, it is incumbent upon a potential property owner to educate himself regarding existing utility easements on property he is considering purchasing.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This article strives to (i) outline factors related to existing utility easements that a property buyer should consider and identify prior to buying property to avoid later problems and issues and (ii) overview possible options to resolve such problems and issues collaboratively with the utility company.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0What is a utility easement and a utility right-of-way?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Generally, an easement "is a right which one person has to use the land of another for a specific purpose."1 An easement may arise by grant, necessity, prescription, implication by prior use or condemnation.2 A right-of-way is generally an easement across another's property, over a certain portion of that property, for a specified purpose; for example, the placement of utility lines.3 Oftentimes, both in the utility context and generally, "right-of-way" and "easement" are used interchangeably. Utility rights-of-way are most commonly used by utility companies for the installation of overhead utility poles and lines (both for transmission and distribution), underground pipelines, above ground substations and related equipment.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0How does a utility company acquire a utility easement?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A utility company may acquire an easement a number of different ways, including:

(1) Express Grant. When a utility company acquires an easement by grant, it can be through an executed instrument (for example, a written easement agreement or deed) between a property owner and the utility company, or the utility company's predecessor in interest. This instrument should adequately reflect the intentions of the parties and describe the rights granted to the utility company and the property affected.4

(2) Necessity. Generally, this type of easement could arise when property becomes "landlocked" through severance of title and no access to a public road or other public right of way is available.5 South Carolina case law disfavors landlocked property and has generally been viewed to grant rights via an easement by necessity for access to landlocked property.

(3) Prescription. This type of easement is established by conduct. One claiming a prescriptive easement must establish 1) the continued and uninterrupted use or enjoyment of the right for a period of 20 years; 2) the identity of the thing enjoyed; and 3) the use or enjoyment was adverse or under claim of right.6

(4) Implication by prior use. South Carolina courts may find an easement via implication through prior use in the context of necessity (as described above) and in agreements that create an easement through their language and intent (i.e., an express grant).7 The purpose of an implied easement is to give effect to the intentions of the parties to a transaction.8

(5) Eminent domain. South Carolina statute allows certain entities to acquire an interest in real property necessary for a public purpose via a taking for just compensation. As provided by statute, public utility companies may acquire an easement through eminent domain, also referred to as "condemnation."9 Thus, a public utility company can acquire property to the extent allowed by statutory law.10

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Obtaining a title search for the property

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Any prospective buyer should obtain a full title search of the property to acquire and review recorded copies of utility easement documents. The title search should be performed by a licensed, experienced, title abstractor familiar with the applicable county, with a search that goes back at least 60 years. The title search should also be reviewed by a local attorney who is experienced and knowledgeable in property law and easements. Additionally, although rarely done in practice, a prospective property buyer should request his title abstractor to search further back in the title records, beyond...

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