EASEMENT AGREEMENT
(State of Delaware)
[// GUIDANCE: This template is drafted to comply with Delaware real-property law and common recording practices. It is intentionally comprehensive; delete any bracketed text that is not applicable and tailor defined terms, exhibits, and section references to the specific transaction.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
- Representations & Warranties
- Covenants & Restrictions
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
- Exhibits
1. DOCUMENT HEADER
Easement Agreement (“Agreement”) made as of [Effective Date], by and between [Grantor’s Full Legal Name], a [State & Entity Type] (“Grantor”), and [Grantee’s Full Legal Name], a [State & Entity Type] (“Grantee”). Grantor and Grantee are each a “Party” and collectively the “Parties.”
Recitals
A. Grantor is the record owner of that certain real property located in the County of [County], State of Delaware, more particularly described on Exhibit A (the “Servient Property”).
B. Grantee is the record owner (or intended purchaser/tenant) of that certain real property located in the County of [County], State of Delaware, more particularly described on Exhibit B (the “Dominant Property”).
C. Grantor desires to grant, and Grantee desires to accept, a[n] [select: appurtenant / in-gross] [select: exclusive / non-exclusive] easement for [describe purpose, e.g., access, utilities, drainage] over a portion of the Servient Property described on Exhibit C (the “Easement Area”), all upon the terms and conditions set forth herein and for good and valuable consideration, the receipt and sufficiency of which are acknowledged.
NOW, THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the Parties agree as follows:
2. DEFINITIONS
For purposes of this Agreement, the following capitalized terms have the meanings set forth below. Defined terms may be used in the singular or plural, as the context requires.
“Actual Damages” means direct, out-of-pocket losses proven under Delaware law, excluding any consequential, incidental, special, exemplary, or punitive damages.
“Commencement Date” means the Effective Date unless another date is specified in Section 3.2.
“Dominant Property” has the meaning set forth in Recital B.
“Easement” means the easement rights granted in Section 3.1.
“Easement Area” has the meaning set forth in Recital C and depicted on Exhibit C.
“Effective Date” has the meaning set forth in the Document Header.
“Grantor” and “Grantee” have the meanings set forth in the Document Header.
“Losses” means claims, liabilities, damages, fines, penalties, costs, and expenses (including reasonable attorneys’ fees and court costs).
“Servient Property” has the meaning set forth in Recital A.
[Add additional defined terms as needed.]
3. OPERATIVE PROVISIONS
3.1 Grant of Easement. Subject to the terms and conditions of this Agreement, Grantor hereby grants to Grantee, its successors and assigns, a perpetual [exclusive / non-exclusive], [surface / subsurface / overhead] easement over, across, under, upon, and through the Easement Area for the purposes of [insert specific purposes, e.g., vehicular and pedestrian ingress, egress, and installation, operation, maintenance, repair, replacement, and upgrade of utility lines] (the “Easement”).
3.2 Term; Commencement. The Easement shall commence on the Commencement Date and shall continue in perpetuity unless earlier terminated pursuant to Section 3.10.
3.3 Nature of Easement.
(a) Appurtenance. If appurtenant, the Easement shall run with and benefit the Dominant Property and burden the Servient Property.
(b) In Gross. If in-gross, the Easement shall be personal to Grantee and its permitted successors and assigns.
[// GUIDANCE: Choose (a) or (b) or retain both with appropriate edits.]
3.4 Rights Included. The Easement includes:
(i) the right to enter upon the Easement Area with personnel, vehicles, and equipment as reasonably necessary to exercise the rights granted;
(ii) the right to install, use, maintain, repair, and replace [utilities] within the Easement Area;
(iii) the right to remove vegetation and obstructions interfering with the Easement, provided Grantor is given [__] days’ prior written notice, except in emergencies.
3.5 Consideration. As consideration for the Easement, Grantee shall pay Grantor [Monetary Amount] on or before [Payment Date], [or] other consideration described herein. Failure to timely pay constitutes an Event of Default subject to Section 6.1.
3.6 Construction Standards; Restoration. Grantee shall perform all work in a good and workmanlike manner, in compliance with applicable Laws, and shall restore any disturbed portions of the Servient Property to substantially the same condition that existed immediately prior to such disturbance, reasonable wear and tear excepted.
3.7 Recording. The Parties shall record this Agreement (or a memorandum thereof) in the Office of the Recorder of Deeds for the County in which the Servient Property is located within [10] business days after the later of (a) the Effective Date or (b) receipt of executed original counterparts. Grantee shall bear all recording fees and transfer taxes.
3.8 Title Matters. The Easement is granted subject to all matters of record as of the Effective Date, provided such matters do not materially interfere with the exercise of the Easement.
3.9 Taxes & Assessments. Grantee shall pay when due any increase in real property taxes or assessments levied exclusively as a result of the Easement or Grantee’s improvements within the Easement Area.
3.10 Termination. The Easement may be terminated only:
(a) by a written release executed by the Party benefiting from the Easement, duly acknowledged and recorded;
(b) by merger of ownership of the Dominant and Servient Properties in the same party;
(c) by abandonment evidenced by [choose: a recorded affidavit of abandonment / a final, non-appealable decree of a court of competent jurisdiction];
(d) upon expiration of a specified term [insert if applicable];
(e) by condemnation of the Easement Area; or
(f) as otherwise provided by Delaware law.
[// GUIDANCE: Delaware recognizes termination by release, merger, and abandonment; adjust as needed.]
4. REPRESENTATIONS & WARRANTIES
4.1 Mutual Representations. Each Party represents and warrants to the other that:
(a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation;
(b) it has full power and authority to execute, deliver, and perform this Agreement;
(c) this Agreement constitutes a valid and binding obligation, enforceable against it in accordance with its terms; and
(d) its execution, delivery, and performance of this Agreement do not violate any agreement to which it is a party.
4.2 Grantor’s Additional Representations. Grantor further represents and warrants that:
(a) Grantor holds fee title to the Servient Property, free of any liens or encumbrances that would prevent the granting of this Easement; and
(b) no consent of any third party (other than that of any mortgagee identified on Exhibit D or public authority) is required for Grantor to enter into this Agreement.
4.3 Survival. The representations and warranties in this Article 4 shall survive the Effective Date and shall not be merged into any deed or conveyance.
5. COVENANTS & RESTRICTIONS
5.1 Grantor’s Covenants. Grantor shall:
(a) refrain from erecting any structure or permitting any use within the Easement Area that unreasonably interferes with Grantee’s rights;
(b) provide Grantee with [__] days’ prior written notice of any planned activity within the Easement Area; and
(c) execute any further assurances reasonably requested by Grantee to confirm or perfect the rights granted herein.
5.2 Grantee’s Covenants. Grantee shall:
(a) comply with all applicable federal, state, and local laws, ordinances, and regulations (“Laws”) in exercising the Easement;
(b) keep the Easement Area free from mechanic’s liens arising out of Grantee’s work; and
(c) maintain in effect during any construction or maintenance activities, at its sole cost, insurance satisfying the requirements set forth on Exhibit E.
5.3 Notice & Cure. Except in emergencies, a Party alleging breach of this Article 5 shall provide written notice specifying the breach and allow the breaching Party [30] days to cure before seeking remedies.
6. DEFAULT & REMEDIES
6.1 Events of Default. A Party is in default (“Event of Default”) if it:
(a) materially breaches this Agreement and fails to cure within the applicable notice period;
(b) fails to pay amounts due within [10] days after written notice; or
(c) files for bankruptcy or is the subject of an involuntary bankruptcy that is not dismissed within [90] days.
6.2 Remedies. Upon an Event of Default, the non-defaulting Party may, subject to Section 7.2:
(a) obtain specific performance or injunctive relief without posting bond to enforce any provision of this Agreement;
(b) recover Actual Damages proven in accordance with Delaware law;
(c) perform the defaulting Party’s obligations at its cost and seek reimbursement; and
(d) pursue any other remedy available at law or in equity, each of which shall be cumulative.
6.3 Attorneys’ Fees. The prevailing Party in any action to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees, court costs, and expenses.
7. RISK ALLOCATION
7.1 Indemnification. Each Party (“Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party, its affiliates, and their respective officers, directors, members, managers, employees, and agents (“Indemnified Parties”) from and against any and all Losses arising out of or resulting from:
(i) the Indemnifying Party’s breach of this Agreement;
(ii) the negligence or willful misconduct of the Indemnifying Party or its agents within the Easement Area; or
(iii) the Indemnifying Party’s failure to comply with applicable Laws.
7.2 Limitation of Liability. Notwithstanding anything to the contrary, neither Party shall be liable to the other for any consequential, incidental, special, exemplary, or punitive damages, and each Party’s aggregate liability under this Agreement shall be limited to Actual Damages.
7.3 Insurance. Grantee shall maintain, at its sole cost, commercial general liability insurance with combined single limits of not less than [$___] per occurrence and [$___] aggregate, naming Grantor as an additional insured. Evidence of coverage shall be provided to Grantor prior to commencement of any work and upon renewal.
7.4 Force Majeure. Neither Party shall be liable for failure to perform its obligations (other than payment obligations) due to causes beyond its reasonable control, including acts of God, war, terrorism, civil disturbance, labor disputes, pandemics, or governmental actions, provided the affected Party promptly notifies the other Party and resumes performance as soon as practicable.
8. DISPUTE RESOLUTION
8.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts-of-law principles.
8.2 Forum Selection. Except as otherwise provided in Section 8.3, any suit arising out of or relating to this Agreement shall be brought exclusively in the state courts of competent jurisdiction sitting in [County] County, Delaware, and each Party irrevocably submits to such jurisdiction.
8.3 Arbitration (Optional). [OPTIONAL – DELETE IF NOT ELECTED]
(a) Election. Upon mutual written election by the Parties, any dispute shall be resolved by binding arbitration administered by [AAA / JAMS] in accordance with its [real estate] arbitration rules.
(b) Location. The arbitration shall take place in [City, Delaware].
(c) Injunctive Relief. Notwithstanding the foregoing, either Party may seek provisional injunctive relief in any court of competent jurisdiction to preserve the status quo.
(d) Award & Enforcement. Judgment on the arbitrator’s award may be entered in any court having jurisdiction.
8.4 Jury Trial Waiver (Optional). [OPTIONAL – DELETE IF NOT ELECTED] EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
8.5 Specific Performance. The Parties acknowledge that monetary damages would be an inadequate remedy for any breach of this Agreement and that, in the event of a breach, the non-breaching Party shall be entitled to specific performance or injunctive relief, in addition to any other remedies available at law or in equity.
9. GENERAL PROVISIONS
9.1 Amendments & Waivers. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. No waiver shall constitute a waiver of any subsequent breach.
9.2 Assignment & Delegation. Grantee may not assign its rights or delegate its obligations under this Agreement without the prior written consent of Grantor, which consent shall not be unreasonably withheld, conditioned, or delayed; except that Grantee may assign to (i) an affiliate, or (ii) a successor in interest to the Dominant Property, provided written notice is given to Grantor and the assignee assumes Grantee’s obligations in writing.
9.3 Successors & Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns, and shall run with the land as applicable.
9.4 Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid provision shall be reformed to the minimum extent necessary to make it enforceable.
9.5 Entire Agreement. This Agreement (including all Exhibits) constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements.
9.6 Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. Signatures delivered by electronic means (e.g., PDF, DocuSign) shall be deemed original signatures for all purposes.
9.7 Notices. All notices shall be in writing and delivered (i) by hand, (ii) by nationally recognized overnight courier, or (iii) by certified U.S. mail, return receipt requested, to the addresses set forth below (or such other address designated in writing). Notice is deemed given upon receipt or refusal.
Grantor Notice Address:
[Grantor’s Name]
[Street Address]
[City, State ZIP]
Attn: [Title]
Grantee Notice Address:
[Grantee’s Name]
[Street Address]
[City, State ZIP]
Attn: [Title]
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties have executed this Easement Agreement as of the Effective Date.
GRANTOR:
[Grantor’s Legal Name]
By: ____
Name: ____
Title: ____
GRANTEE:
[Grantee’s Legal Name]
By: ____
Name: ____
Title: ____
NOTARY ACKNOWLEDGMENT – STATE OF DELAWARE
State of Delaware )
: SS )
County of ____ )
On this _ day of _, 20__, before me, the undersigned Notary Public, personally appeared ____, who acknowledged he/she is the ___ of ________, and that, being authorized to do so, executed the foregoing Easement Agreement for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My Commission Expires: ______
[// GUIDANCE: If Parties are individuals, substitute individual acknowledgment form.]
11. EXHIBITS
Exhibit A – Legal Description of Servient Property
Exhibit B – Legal Description of Dominant Property
Exhibit C – Easement Area Depiction / Survey
Exhibit D – Mortgagee Consents (if any)
Exhibit E – Insurance Requirements
[// GUIDANCE: Attach survey or metes-and-bounds description for the Easement Area to satisfy Delaware recording standards. Obtain and record any required mortgagee or HOA consents.]
End of Document