Easement Agreement - Montana

EASEMENT AND RIGHT-OF-WAY AGREEMENT

(Montana – State-Law Governed)

Select one easement structure. Montana distinguishes servitudes attached to land from servitudes held without attachment to other land. For an appurtenant easement, identify the Dominant Estate and its successors in title. For an easement in gross, identify the holder and every permitted successor or assignee class in the written grant. Mont. Code Ann. §§ 70-17-101, 70-17-102, and 70-17-106.

No fixed nonuse shortcut. This form does not make a written easement terminate automatically after a preset period of nonuse. Section 70-17-111(1)(d) applies disuse to a servitude acquired by enjoyment. A disputed extinguishment or abandonment of a written easement requires Montana title counsel and an authorized record-clearing instrument or final court order.

Recording protects notice and priority. A recordable instrument generally must be acknowledged and recorded in the county where the affected property lies. Proper recording supplies constructive notice and protects against the priority rule in Mont. Code Ann. §§ 70-21-203, 70-21-208, 70-21-302, and 70-21-304.

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Grant of Easement & Scope of Rights
4. Consideration & Conditions Precedent
5. Representations & Warranties
6. Covenants & Restrictions
7. Maintenance, Repair & Operations
8. Insurance & Risk Allocation
9. Indemnification
10. Limitation of Liability
11. Default, Cure & Remedies
12. Term; Termination & Release Procedures
13. Recording & Post-Closing Obligations
14. Dispute Resolution
15. General Provisions
16. Execution Block & Notarial Certificate

1. DOCUMENT HEADER

1.1 Parties

This Easement and Right-of-Way Agreement (this “Agreement”) is made and entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:

[GRANTOR LEGAL NAME], a [STATE] [ENTITY TYPE], having an address of [ADDRESS] (the “Grantor”); and

[GRANTEE LEGAL NAME], a [STATE] [ENTITY TYPE], having an address of [ADDRESS] (the “Grantee”).

Grantor and Grantee may 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 [COUNTY], Montana, more particularly described in Exhibit A attached hereto and incorporated herein by reference (the “Servient Estate”).
B. Grantee desires to obtain, and Grantor agrees to grant, an easement over, across, under, and through a portion of the Servient Estate for the purposes set forth herein.
C. The Parties intend that this Agreement satisfy all requirements for recordation in the State of Montana and be binding upon and inure to the benefit of the Parties and their respective successors and assigns.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

2. DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below. Defined terms appear in alphabetical order and are used throughout this Agreement with initial capital letters.

“Access Easement” – The non-exclusive right of ingress and egress over the Easement Area for the term selected in Section 3.2(c) and solely for the Easement Purposes.
“Applicable Law” – All laws, statutes, ordinances, rules, regulations, and orders of any governmental authority with jurisdiction over the Parties, the Servient Estate, or the Easement Purposes, including, without limitation, the recording statutes of the State of Montana.
“Construction Period” – The period commencing on the Effective Date and expiring upon completion of the Initial Improvements, not to exceed [___] months absent Grantor’s written extension.
“Defaulting Party” – As defined in Section 11.1.
“Easement Area” – That portion of the Servient Estate described in Exhibit B and depicted in the survey attached as Exhibit C.
“Easement Purposes” – Collectively, the Access Easement, Utilities Easement, and any Temporary Construction Easement, as further described in Section 3.
“Environmental Law” – Any Applicable Law relating to pollution, protection of human health or the environment, or the handling of Hazardous Substances.
“Hazardous Substances” – Any substance regulated under Environmental Law, including but not limited to petroleum products and asbestos.
“Initial Improvements” – As defined in Section 6.1(a).
“Maintenance Activities” – All activities reasonably necessary to keep the Easement Area in good order, condition, and repair, as set forth in Section 7.
“Release Instrument” – A written instrument executed and acknowledged by every required interest holder in recordable form evidencing the termination or release of all or any portion of the Easement, as further provided in Section 12.4.
“Utilities Easement” – The non-exclusive right, for the term selected in Section 3.2(c), to install, operate, maintain, repair, replace, and remove utility facilities (including, without limitation, water, sewer, gas, electric, telecommunications, and data facilities) within the Easement Area.

3. GRANT OF EASEMENT & SCOPE OF RIGHTS

3.1 Grant. Subject to the terms and conditions herein, Grantor hereby grants, bargains, sells, conveys, and warrants to Grantee:
(a) the Access Easement;
(b) the Utilities Easement; and
(c) a temporary construction easement during the Construction Period (the “Temporary Construction Easement”) for purposes of staging, equipment storage, and related work necessary to complete the Initial Improvements.

3.2 Nature. Select and complete one classification; delete the other.
(a) ☐ Appurtenant Easement. The Access Easement and Utilities Easement are appurtenant to and benefit Grantee’s parcel legally described in Exhibit D (the “Dominant Estate”). They burden the Servient Estate and benefit the Dominant Estate and the respective successors in title to those estates for the stated term.
(b) ☐ Easement in Gross. The Access Easement and Utilities Easement are held in gross by Grantee and burden the Servient Estate for the stated term. The written grant specifically includes only the following permitted successors or assignees: [IDENTIFY BY NAME OR PRECISE CLASS: ________________________________]. Any transfer must also comply with Section 15.2.
(c) Term. The Access Easement and Utilities Easement are [SELECT: perpetual / effective from ______ through ______]. The Temporary Construction Easement has the shorter term stated in Section 12.1.
(d) Non-Exclusivity. The Easement is non-exclusive, and Grantor reserves the right to use the Easement Area in any manner not inconsistent with Grantee’s rights, provided such use does not materially interfere with the Easement Purposes.

3.3 Limitations. Grantee shall not (i) interfere unreasonably with Grantor’s or third parties’ use of the Servient Estate, (ii) store hazardous materials within the Easement Area, or (iii) expand the Easement Area beyond the boundaries shown in Exhibit B without Grantor’s prior written consent.

3.4 Compliance. Grantee shall comply with all Applicable Law, obtain all permits, and provide advance written notice to Grantor at least [___] days before commencing any intrusive work.

4. CONSIDERATION & CONDITIONS PRECEDENT

4.1 Consideration. As full consideration for the Easement, Grantee shall pay to Grantor the sum of $[AMOUNT] (the “Easement Fee”) within ☐ business days following the Effective Date.

4.2 Conditions Precedent. The obligations of the Parties are conditioned upon:
(a) Delivery of an executed and notarized counterpart of this Agreement;
(b) Delivery to the title company of executed recordation instructions; and
(c) Payment of the Easement Fee.

Failure of any Party to satisfy the foregoing conditions by [OUTSIDE DATE] shall render this Agreement voidable by the non-defaulting Party upon written notice.

5. REPRESENTATIONS & WARRANTIES

5.1 Mutual. Each Party represents and warrants to the other that:
(a) Authority. It is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation and has full power and authority to enter into this Agreement.
(b) Authorization. The execution, delivery, and performance of this Agreement have been duly authorized by all requisite action.
(c) Enforceability. This Agreement constitutes a valid and binding obligation, enforceable against such Party in accordance with its terms.

5.2 Grantor Specific. Grantor further represents and warrants that:
(a) Title. Grantor is the fee owner of the Servient Estate, free and clear of all liens, claims, encumbrances, and easements other than those of record.
(b) No Conflict. Grant of the Easement does not and will not violate any covenant, agreement, or restriction applicable to the Servient Estate.
(c) No Hazardous Substances. To Grantor’s actual knowledge, the Easement Area is free from Hazardous Substances in violation of Environmental Law.

5.3 Survival. All representations and warranties shall survive the recordation of this Agreement.

6. COVENANTS & RESTRICTIONS

6.1 Grantee Covenants.
(a) Improvements. Grantee may construct the initial improvements described in Exhibit E (the “Initial Improvements”) within the Easement Area, subject to Applicable Law and Section 3.4.
(b) Maintenance. Grantee shall perform Maintenance Activities at its sole cost.
(c) Restoration. Upon completion of any work, Grantee shall promptly restore the Easement Area and adjacent property to a condition reasonably equivalent to or better than that existing prior to the commencement of such work.

6.2 Grantor Covenants.
(a) Non-Interference. Grantor shall not erect any structure or engage in any activity within the Easement Area that unreasonably interferes with the Easement Purposes.
(b) Notice of Work. Grantor shall provide Grantee with [___] days’ prior written notice of any significant earthwork or construction in proximity to the Easement Area.

6.3 Compliance. Each Party shall promptly provide copies of any governmental notice alleging violation of Applicable Law relating to the Easement Area.

7. MAINTENANCE, REPAIR & OPERATIONS

7.1 Routine Maintenance. Grantee shall keep the Easement Area reasonably free of debris, vegetation, and hazards and shall maintain all Improvements in good repair.

7.2 Emergency Work. In the event of an emergency threatening life, property, or material interruption of utility service, Grantee may enter the Servient Estate without prior notice to undertake necessary repairs; provided Grantee gives written notice to Grantor within 24 hours thereafter.

7.3 Allocation of Costs. Except as expressly provided otherwise herein, all costs of installation, operation, maintenance, repair, removal, and replacement of improvements within the Easement Area shall be borne by Grantee.

8. INSURANCE & RISK ALLOCATION

8.1 Insurance.
(a) Coverage. Grantee shall maintain at its sole cost (i) commercial general liability insurance with limits of not less than $[___] million per occurrence and $[___] million aggregate; (ii) workers’ compensation coverage as required by law; and (iii) automobile liability insurance for owned and non-owned vehicles.
(b) Additional Insured. Grantor shall be named as an additional insured on policies required by Section 8.1(a).
(c) Certificates. Grantee shall deliver certificates of insurance evidencing such coverage prior to commencement of any work and annually thereafter.

8.2 Waiver of Subrogation. Each Party waives, and shall cause its insurers to waive, all rights of subrogation against the other Party to the extent permitted by Applicable Law.

9. INDEMNIFICATION

9.1 By Grantee. Grantee shall indemnify, defend, and hold harmless Grantor, its affiliates, successors, and assigns from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to:
(a) Grantee’s exercise of the rights granted herein;
(b) any breach of this Agreement by Grantee; or
(c) the negligence or willful misconduct of Grantee or its agents, contractors, or invitees,
except to the extent caused by the negligence or willful misconduct of Grantor.

9.2 Procedure. The indemnified Party shall provide prompt written notice of any claim and shall cooperate in the defense. The indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent if the settlement imposes any obligation on the indemnified Party other than payment indemnified hereunder.

10. LIMITATION OF LIABILITY

10.1 Liability Cap. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY DAMAGES IN EXCESS OF THE ACTUAL, DIRECT DAMAGES PROXIMATELY CAUSED BY ITS BREACH OF THIS AGREEMENT, PROVIDED THAT THE FOREGOING CAP SHALL NOT APPLY TO:
(a) A PARTY’S OBLIGATION TO INDEMNIFY UNDER SECTION 9;
(b) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR
(c) DAMAGES RECOVERABLE UNDER ANY INSURANCE MAINTAINED PURSUANT TO SECTION 8.

10.2 Excluded Damages. EACH PARTY WAIVES AND RELEASES ALL RIGHTS TO RECOVER CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS OR BUSINESS INTERRUPTION, EXCEPT TO THE EXTENT INCLUDED IN A THIRD-PARTY CLAIM SUBJECT TO THE INDEMNITY OBLIGATIONS OF SECTION 9.

11. DEFAULT, CURE & REMEDIES

11.1 Events of Default. A Party shall be deemed in default (the “Defaulting Party”) upon:
(a) Failure to perform any material covenant herein within 30 days after receipt of written notice (or if such default is not reasonably curable within 30 days, failure to commence and diligently pursue cure);
(b) Any representation or warranty proving materially false; or
(c) Insolvency, receivership, or assignment for the benefit of creditors.

11.2 Remedies. In the event of a default, the non-defaulting Party may, in its discretion and in addition to all other rights and remedies available at law or in equity:
(a) Seek specific performance, injunctive relief, or declaratory relief to the extent available under the circumstances and Applicable Law;
(b) Recover actual damages subject to Section 10; and
(c) Recover reasonable attorneys’ fees and costs incurred in enforcing this Agreement.

12. TERM; TERMINATION & RELEASE PROCEDURES

12.1 Term. The Access Easement and Utilities Easement have the term selected in Section 3.2(c). The Temporary Construction Easement shall automatically terminate upon the earlier of (i) completion of the Initial Improvements or (ii) expiration of the Construction Period.

12.2 Termination Events. This Agreement may be terminated, in whole or in part, by:
(a) Expiration of the stated term, if term-limited;
(b) A Release Instrument executed and acknowledged by every required holder of the interest being released and recorded in the county records;
(c) Vesting of the right to the servitude and the right to the Servient Estate in the same person, subject to title counsel’s confirmation and Mont. Code Ann. § 70-17-111;
(d) Destruction of the Servient Estate or an act by the easement holder, or with that holder’s assent, that is incompatible with the easement’s nature or exercise, as provided in Mont. Code Ann. § 70-17-111; or
(e) A final court order or another extinguishment event that Montana title counsel confirms applies to the facts.

12.3 Disputed Termination. Notice alleging default, nonuse, abandonment, merger, or another disputed event does not by itself extinguish the Easement or authorize a unilateral termination filing. The Parties shall use a Release Instrument signed by every required holder or obtain a final court order suitable for clearing the record.

12.4 Recordation of Release. Upon termination of all or any portion of the Easement, the Parties shall promptly execute a Release Instrument for recording in the real property records of the county where the Servient Estate is located. Grantee shall bear all recording fees for such Release Instrument except where termination arises from Grantor’s default, in which case Grantor shall bear such fees.

13. RECORDING & POST-CLOSING OBLIGATIONS

13.1 Recording. The Parties shall submit this Agreement (or a mutually acceptable memorandum of easement that accurately states the granted interest) for recording in the office of the county clerk for [COUNTY], Montana, promptly following execution and acknowledgment. Mont. Code Ann. §§ 70-21-203 and 70-21-208. Recording supplies constructive notice from filing and is material to priority under Mont. Code Ann. §§ 70-21-302 and 70-21-304.

13.2 Costs. Recording fees, documentary fees, and transfer taxes (if any) shall be paid by [SELECT: Grantee / Grantor / shared equally].

13.3 Post-Closing Deliverables. Grantee shall deliver to Grantor, within [___] days after recordation, (i) a conformed copy of the recorded Agreement and (ii) evidence of payment of all recording fees.

14. DISPUTE RESOLUTION

14.1 Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Montana, without regard to its conflict-of-laws principles.

14.2 Forum Selection. Subject to Section 14.3 and any mandatory jurisdiction or venue rule, the Parties consent to an otherwise competent court located in [COUNTY], Montana, where the Servient Estate is located.

14.3 Arbitration (Optional). [SELECT ONE OF THE FOLLOWING AND INITIAL]
(a) ☐ The Parties agree that any dispute shall, as a condition precedent to litigation, be submitted to [ADMINISTERING BODY] arbitration in accordance with its rules. Judgment on the award may be entered in any court of competent jurisdiction.
(b) ☐ The Parties do NOT agree to arbitrate.

14.4 Jury Trial. This template does not include a jury-trial waiver. Montana counsel must separately draft and review any waiver for the selected dispute process.

14.5 Injunctive Relief. Notwithstanding Section 14.3, either Party may seek temporary or permanent injunctive relief or specific performance, to the extent available, in a court of competent jurisdiction.

15. GENERAL PROVISIONS

15.1 Amendment & Waiver. This Agreement may be amended only by a written instrument executed by the required Parties. An amendment changing the recorded Easement, its scope, term, benefited estate, burdened estate, or permitted successors or assignees must be acknowledged and recorded. No waiver shall be effective unless in writing and signed by the Party against whom enforcement is sought.

15.2 Assignment. Apply only the option selected in Section 3.2.
(a) ☐ Appurtenant Easement. The Easement benefits the Dominant Estate described in Exhibit D. A separate assignment is not intended apart from a transfer of the benefited interest in that estate. Any written assumption or assignment used at closing must be consistent with the recorded grant.
(b) ☐ Easement in Gross. Grantee may assign the Easement only to a successor or assignee specifically provided for in the written grant in Section 3.2(b), and only through a written assumption executed and recorded in [COUNTY], Montana. Any other assignment requires an amendment to the grant executed by the required Parties.

15.3 Successors & Assigns. The Parties specifically intend this Agreement to bind and benefit only the successors and permitted assigns identified by the selected structure in Sections 3.2 and 15.2. Mont. Code Ann. § 70-17-106(3) requires additional successor or assignee rights under a written servitude to be specifically provided for in writing in the grant.

15.4 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force, and the Parties shall negotiate an enforceable substitute provision that most closely reflects the Parties’ original intent.

15.5 Integration. This Agreement, together with the Exhibits, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior negotiations, agreements, or understandings.

15.6 Force Majeure. Neither Party shall be liable for failure to perform its obligations (other than payment obligations) due to events beyond its reasonable control, including natural disasters, acts of God, war, terrorism, governmental action, or labor disputes, provided the affected Party gives prompt notice and uses commercially reasonable efforts to resume performance.

15.7 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts. Subject to the transaction scope in Mont. Code Ann. § 30-18-103, an electronic record or signature is not denied legal effect solely because of its electronic form, and an electronic record or signature can satisfy a writing or signature requirement under § 30-18-106. The recordable counterpart must still carry the acknowledgment required by § 70-21-203 and be in a format accepted by the receiving county clerk. A transmitted PDF copy is not itself a substitute for an original or electronically recordable instrument acceptable to that office.

15.8 Notices. All notices shall be in writing and deemed delivered (i) upon personal delivery, (ii) one business day after dispatch by nationally recognized overnight courier, or (iii) three business days after deposit in U.S. certified mail, return receipt requested, postage prepaid, addressed to the Party at its address set forth above (or such other address as such Party may designate by notice).

16. EXECUTION BLOCK & NOTARIAL CERTIFICATE

IN WITNESS WHEREOF, the Parties have executed this Easement and Right-of-Way Agreement as of the Effective Date.

GRANTOR:

[GRANTOR LEGAL NAME]
By: _________________________________
Name: _______________________________
Title: ________________________________

GRANTEE:

[GRANTEE LEGAL NAME]
By: _________________________________
Name: _______________________________
Title: ________________________________

NOTARIAL ACKNOWLEDGMENT — GRANTOR

(Representative-capacity short form based on Mont. Code Ann. § 1-5-610(2); use a separate certificate and select the legally appropriate capacity for each signer.)

State of ______________________

County of _____________________

This record was acknowledged before me on [DATE] by [NAME OF SIGNER] as [TITLE OR CAPACITY] of or for [GRANTOR LEGAL NAME].

__________________________________
Signature of notarial officer

[OFFICIAL STAMP]

Printed name and title of officer (if not shown in stamp): [____________________________]

NOTARIAL ACKNOWLEDGMENT — GRANTEE

(Representative-capacity short form based on Mont. Code Ann. § 1-5-610(2).)

State of ______________________

County of _____________________

This record was acknowledged before me on [DATE] by [NAME OF SIGNER] as [TITLE OR CAPACITY] of or for [GRANTEE LEGAL NAME].

__________________________________
Signature of notarial officer

[OFFICIAL STAMP]

Printed name and title of officer (if not shown in stamp): [____________________________]

EXHIBITS

Exhibit A – Legal Description of Servient Estate
Exhibit B – Legal Description of Easement Area
Exhibit C – Survey/Plat Depicting Easement Area
Exhibit D – [If Appurtenant] Legal Description of Dominant Estate
Exhibit E – Description of Initial Improvements

SOURCES AND REFERENCES

• Mont. Code Ann. § 70-20-101 — Transfer to be in writing
• Mont. Code Ann. § 70-17-101 — Servitudes attached to land
• Mont. Code Ann. § 70-17-102 — Servitudes not attached to land
• Mont. Code Ann. § 70-17-104 — Who may grant servitude
• Mont. Code Ann. § 70-17-106 — Extent of servitude
• Mont. Code Ann. § 70-17-111 — How servitude extinguished
• Mont. Code Ann. § 70-21-203 — Acknowledgment before recording
• Mont. Code Ann. § 70-21-208 — County of recording
• Mont. Code Ann. § 70-21-302 — Recording as constructive notice
• Mont. Code Ann. § 70-21-304 — Recording priority
• Mont. Code Ann. § 1-5-602 — Notarial definitions
• Mont. Code Ann. § 1-5-610 — Short-form notarial certificates
• Mont. Code Ann. § 30-18-103 — Electronic-transactions scope
• Mont. Code Ann. § 30-18-106 — Legal recognition of electronic records and signatures