EASEMENT AGREEMENT
State of Hawai‘i
TABLE OF CONTENTS
- Document Header............................................................. 1
- Definitions................................................................ 2
- Operative Provisions....................................................... 4
- Representations & Warranties............................................... 7
- Covenants & Restrictions................................................... 8
- Default & Remedies......................................................... 9
- Risk Allocation............................................................ 11
- Dispute Resolution......................................................... 13
- General Provisions......................................................... 15
- Execution Block............................................................ 18
[// GUIDANCE: Page numbers assume finalized formatting software. Adjust after edits.]
1. DOCUMENT HEADER
1.1 Parties
This Easement Agreement (this “Agreement”) is made and entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
a. [GRANTOR LEGAL NAME], a [STATE OF FORMATION] [ENTITY TYPE], having its principal address at [ADDRESS] (“Grantor”); and
b. [GRANTEE LEGAL NAME], a [STATE OF FORMATION] [ENTITY TYPE], having its principal address at [ADDRESS] (“Grantee”).
Grantor and Grantee may each be referred to herein individually as a “Party” and collectively as the “Parties.”
1.2 Recitals
A. Grantor is the fee simple owner of certain real property located in the State of Hawai‘i, more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the “Servient Estate”).
B. Grantee is the fee simple owner, lessee, or beneficiary of record of certain real property described in Exhibit B attached hereto (the “Dominant Estate”).
C. Grantee has requested, and Grantor has agreed to grant, a perpetual easement on, over, under, and across the Servient Estate for the Easement Purposes (as defined below).
D. The Parties intend that this Agreement be executed, acknowledged, and recorded in the Bureau of Conveyances of the State of Hawai‘i or, if applicable, in the Land Court system pursuant to Haw. Rev. Stat. § 502-33, to bind successors and assigns and to provide notice to third parties.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.
2. DEFINITIONS
[// GUIDANCE: Capitalized terms below are used throughout. Add or delete definitions to fit the transaction.]
“Abandonment” means the cessation of the Easement Purposes for an uninterrupted period of [___] months, without written notice from Grantee of intent to resume.
“Actual Damages Cap” has the meaning set forth in Section 7.3.
“Arbitration” means the optional dispute resolution mechanism described in Section 8.4.
“Bureau of Conveyances” means the regular system recording office of the State of Hawai‘i Department of Land and Natural Resources, or any successor agency thereof.
“Default” has the meaning set forth in Section 6.1.
“Dominant Estate” has the meaning set forth in Recital B.
“Easement Area” means that portion of the Servient Estate legally described in Exhibit C and graphically depicted on Exhibit D.
“Easement Purposes” means [SELECT: ingress/egress ‖ utility installation, operation, and maintenance ‖ drainage ‖ view corridor ‖ conservation ‖ other [SPECIFY]].
“Effective Date” has the meaning set forth in Section 1.2.
“Force Majeure Event” has the meaning set forth in Section 7.5.
“Grantor” and “Grantee” have the meanings set forth in Section 1.1.
“Hazardous Substance” means any substance, material, or waste regulated under applicable Environmental Laws.
“Indemnified Party” and “Indemnifying Party” have the meanings set forth in Section 7.1.
“Land Court” means the Torrens title registration system of the State of Hawai‘i pursuant to Haw. Rev. Stat. Chapter 501.
“Servient Estate” has the meaning set forth in Recital A.
“Termination Event” has the meaning set forth in Section 3.6.
3. OPERATIVE PROVISIONS
3.1 Grant of Easement
Grantor hereby grants, bargains, sells, and conveys to Grantee, its successors and assigns, a [PERPETUAL OR TERM-LIMITED], non-exclusive easement (“Easement”) in, on, over, under, and across the Easement Area for the Easement Purposes, together with the right of reasonable access thereto.
3.2 Consideration
As consideration for this Easement, Grantee shall pay to Grantor the sum of [MONETARY AMOUNT] on or before the Effective Date. [// GUIDANCE: Consideration must be non-nominal under Hawai‘i contract law.]
3.3 Construction & Maintenance
a. Standards: All work performed by Grantee shall (i) comply with applicable federal, state, and local laws, ordinances, and regulations; (ii) utilize commercially reasonable construction practices; and (iii) avoid material interference with Grantor’s use of the Servient Estate.
b. Repair Obligation: Grantee shall promptly restore any portion of the Servient Estate damaged by Grantee’s activities to substantially the same condition existing immediately prior to such damage, reasonable wear and tear excepted.
c. Maintenance: Grantee shall, at its sole cost and expense, maintain the Easement Area in a neat, safe, and orderly condition.
3.4 Rights Reserved to Grantor
Grantor reserves all rights not expressly granted herein, including the right to use the Easement Area for any purpose that does not unreasonably interfere with the Easement Purposes.
3.5 Insurance
Grantee shall, at its sole cost, maintain throughout the term of this Easement the insurance coverages set forth in Exhibit E, naming Grantor as an additional insured.
3.6 Term; Termination
a. Term: Unless sooner terminated pursuant to this Section 3.6, the Easement shall be [PERPETUAL / FOR A TERM OF ___ YEARS COMMENCING ON THE EFFECTIVE DATE].
b. Termination Events (“Termination Events”):
i. Mutual written agreement of the Parties recorded in the Bureau of Conveyances;
ii. Abandonment;
iii. Merger of title of the Dominant and Servient Estates;
iv. Expiration of stated term (if term-limited);
v. Condemnation of the Easement Area by a governmental authority;
vi. Material breach by Grantee uncured pursuant to Section 6.2.
c. Recordation of Termination: Upon the occurrence of any Termination Event, the Parties shall execute and record a quitclaim or release of easement in the Bureau of Conveyances (or Land Court, if applicable).
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 enter into and perform this Agreement;
c. This Agreement constitutes a valid and binding obligation enforceable against such Party in accordance with its terms; and
d. Its execution and performance of this Agreement do not violate any agreement, judgment, or law binding upon it.
4.2 Grantor Representations
Grantor further represents and warrants that:
a. Grantor holds fee simple title to the Servient Estate free and clear of encumbrances that would prevent the grant of the Easement;
b. Grantor has not previously granted any easement or right inconsistent with this Easement; and
c. There are no pending claims, actions, or proceedings affecting the Servient Estate that would adversely affect Grantee’s rights hereunder.
4.3 Survival
The representations and warranties in this Article 4 survive the recordation of this Agreement for a period of [___] years.
5. COVENANTS & RESTRICTIONS
5.1 Affirmative Covenants
a. Grantor shall reasonably cooperate with Grantee in obtaining any governmental approvals required for the Easement Purposes.
b. Grantee shall give Grantor not less than [___] days’ prior written notice of any planned construction within the Easement Area.
5.2 Negative Covenants
a. Grantor shall not erect or permit any structure or improvement within the Easement Area that would materially interfere with the Easement Purposes.
b. Grantee shall not store Hazardous Substances within the Easement Area except in compliance with Environmental Laws.
5.3 Notice & Cure
A Party alleging breach of any covenant shall provide written notice specifying the breach in reasonable detail. The breaching Party shall have [30] days from receipt of notice (or such longer period as reasonably necessary if the breach is not reasonably curable within 30 days) to cure.
6. DEFAULT & REMEDIES
6.1 Events of Default
Each of the following constitutes a “Default”:
a. A material breach of any covenant, representation, or warranty not cured within the applicable cure period;
b. Abandonment;
c. Bankruptcy or insolvency of either Party resulting in failure or inability to perform its obligations.
6.2 Notice & Cure
Upon a Default, the non-defaulting Party shall deliver written notice thereof to the defaulting Party. If the Default remains uncured after expiration of the applicable cure period, the non-defaulting Party may exercise the remedies set forth in Section 6.3.
6.3 Remedies
a. Specific Performance: The Parties acknowledge that the Easement is unique and that monetary damages may be inadequate; therefore, the Parties agree that specific performance is an appropriate remedy.
b. Termination: If the Default is by Grantee and remains uncured, Grantor may terminate the Easement pursuant to Section 3.6.
c. Actual Damages: Subject to the Actual Damages Cap (Section 7.3), the non-defaulting Party may recover direct, out-of-pocket damages.
d. Attorney Fees: The prevailing Party in any action to enforce this Agreement is entitled to reasonable attorney fees and costs.
7. RISK ALLOCATION
7.1 Indemnification
a. Indemnity by Grantee: Grantee (the “Indemnifying Party”) shall defend, indemnify, and hold harmless Grantor, its affiliates, and their respective directors, officers, employees, and agents (each, an “Indemnified Party”) from and against any and all claims, damages, liabilities, losses, costs, and expenses (including reasonable attorney fees) arising out of (i) Grantee’s exercise of the Easement; (ii) breach of this Agreement by Grantee; or (iii) the negligence or willful misconduct of Grantee.
b. Indemnity by Grantor: Grantor shall indemnify Grantee to the same extent for matters arising from Grantor’s negligence or willful misconduct.
c. Procedures: The Indemnified Party shall promptly notify the Indemnifying Party of any claim, allow the Indemnifying Party to assume defense, and cooperate reasonably at the Indemnifying Party’s expense.
7.2 Insurance
See Section 3.5 and Exhibit E for required coverages and limits.
7.3 Limitation of Liability
Except for indemnification obligations under Section 7.1 and liabilities arising from a Party’s gross negligence or willful misconduct, the total aggregate liability of either Party to the other under this Agreement shall not exceed [CAP = FAIR MARKET VALUE OF SERVIENT ESTATE ‖ $__ ] (the “Actual Damages Cap”). In no event shall either Party be liable for consequential, incidental, punitive, or exemplary damages.
7.4 Environmental Liability
Each Party shall comply with all Environmental Laws with respect to its activities on the Easement Area. Responsibility for any release of Hazardous Substances shall rest solely with the Party (or its agents) that caused such release.
7.5 Force Majeure
Neither Party shall be liable for failure or delay in performance to the extent caused by acts of God, natural disasters, war, terrorism, civil commotion, labor disputes, governmental action, or any other circumstance beyond the reasonable control of the affected Party (“Force Majeure Event”), provided such Party gives prompt notice and resumes performance as soon as practicable.
8. DISPUTE RESOLUTION
8.1 Governing Law
This Agreement is governed by and shall be construed in accordance with the real estate laws of the State of Hawai‘i, without regard to conflicts-of-laws principles.
8.2 Forum Selection
Subject to Section 8.4, the Parties consent to the exclusive jurisdiction of the Circuit Court of the First Circuit, State of Hawai‘i or any other Hawai‘i state court of competent jurisdiction for any action arising out of or relating to this Agreement.
8.3 Jury Trial Waiver
[OPTIONAL – INCLUDE IF DESIRED]
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT.
8.4 Arbitration
[OPTIONAL – INCLUDE ONLY IF ARBITRATION ELECTED]
Any dispute not resolved by negotiation within thirty (30) days may be submitted to binding arbitration administered by Dispute Prevention & Resolution, Inc. (“DPR”) in Honolulu, Hawai‘i, in accordance with its Commercial Arbitration Rules then in effect. Judgment upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction.
8.5 Equitable Relief
Notwithstanding Sections 8.3 and 8.4, either Party may seek temporary, preliminary, or permanent injunctive relief or specific performance in any court of competent jurisdiction to prevent irreparable harm.
9. GENERAL PROVISIONS
9.1 Amendment & Waiver
This Agreement may be amended only by a written instrument executed by both Parties and recorded in the Bureau of Conveyances (or Land Court, if applicable). No waiver shall be effective unless in writing and signed by the Party to be charged.
9.2 Assignment
Grantee may assign its rights hereunder only in conjunction with a conveyance of all or part of the Dominant Estate and upon written notice to Grantor. Any other assignment is void without Grantor’s prior written consent, which shall not be unreasonably withheld.
9.3 Successors & Assigns
This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns.
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 or unenforceable provision shall be reformed to the minimum extent necessary to render it valid and enforceable.
9.5 Integration
This Agreement, together with its exhibits, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior understandings, whether written or oral.
9.6 Counterparts; Electronic Signatures
This Agreement may be executed in counterparts, each of which is deemed an original, and all of which together constitute one and the same instrument. Signatures delivered by electronic means (including PDF and DocuSign) are deemed original signatures.
9.7 Recording
Promptly following execution, the Parties shall cause this Agreement (and any later amendment, assignment, or termination document) to be duly acknowledged and recorded in the Bureau of Conveyances (or Land Court, if applicable) in compliance with Haw. Rev. Stat. § 502-33. The recording fees and conveyance tax, if any, shall be borne by [ALLOCATE: Grantor ‖ Grantee ‖ 50/50].
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties have executed this Easement Agreement as of the Effective Date.
GRANTOR:
[GRANTOR LEGAL NAME]
By: _____
Name: _____
Title: _____
Date: _______
GRANTEE:
[GRANTEE LEGAL NAME]
By: _____
Name: _____
Title: _____
Date: _______
NOTARY ACKNOWLEDGMENTS
[// GUIDANCE: Use Hawai‘i statutory short-form acknowledgments. Complete one per signatory and attach following pages.]
EXHIBITS
Exhibit A – Legal Description of Servient Estate
Exhibit B – Legal Description of Dominant Estate
Exhibit C – Easement Area Description
Exhibit D – Easement Area Survey/Map
Exhibit E – Insurance Requirements
[// GUIDANCE: Attach metes-and-bounds descriptions prepared by a licensed surveyor. Verify consistency among Exhibits A-D before recording.]
Haw. Rev. Stat. § 502-33 requires recordation for conveyances to be effective against third parties; failure to record may render the Easement void as to subsequent purchasers for value without notice. Ensure timely submission to the Bureau of Conveyances or Land Court.