EASEMENT AGREEMENT
[South Dakota]
[// GUIDANCE: This template is drafted for use in South Dakota (“SD”). Review SD Codified Laws tit. 43 (Property) and recording requirements in ch. 43-28 before finalizing. Replace all bracketed text with deal-specific information and delete guidance comments prior to execution.]
TABLE OF CONTENTS
- Definitions
- Grant of Easement
- Consideration
- Permitted Uses & Use Restrictions
- Improvements; Maintenance & Repair
- Term; Termination & Release
- Representations & Warranties
- Covenants of the Parties
- Insurance
- Indemnification; Limitation of Liability
- Events of Default; Remedies
- Recording; Title & Further Assurances
- Taxes & Assessments
- Dispute Resolution
- General Provisions
- Execution & Acknowledgment
Exhibits:
A. Legal Description of Grantor Property
B. Easement Area Depiction / Metes-and-Bounds
C. Insurance Requirements
D. Form of Release & Termination Instrument
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings set forth below. Capitalized terms used but not defined herein have the meanings ascribed to them in context.
“Abandon” or “Abandonment” means the continuous non-use of the Easement for its Permitted Use(s) for a period of [___] consecutive months, coupled with written intent to abandon delivered by the Party holding the Easement.
“Actual Damages” means direct, out-of-pocket damages only and excludes consequential, incidental, special, exemplary, punitive, or lost-profit damages.
“Easement” or “Easement Rights” means the non-exclusive, [perpetual / term-limited [TERM]] right granted in Section 2.
“Easement Area” means that portion of the Grantor Property legally described and/or depicted on Exhibit B.
“Governmental Authority” means any federal, state, county, municipal, or other governmental or quasi-governmental body having jurisdiction over the Property or the Parties.
“Grantor Property” has the meaning set forth in the Recitals and Exhibit A.
“Hazardous Materials” means any substance regulated under applicable Environmental Laws.
“Permitted Use(s)” has the meaning set forth in Section 4.1.
“SD Law” means the statutory and common law of the State of South Dakota, without regard to conflicts-of-law principles.
[// GUIDANCE: Add or delete definitions to align with transaction-specific facts.]
2. GRANT OF EASEMENT
2.1 Grant. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor hereby grants, bargains, sells, conveys, and warrants to Grantee a [choose one: (a) perpetual appurtenant; (b) perpetual in gross; (c) term-limited] non-exclusive easement over, across, under, upon, and through the Easement Area for the Permitted Uses, together with:
(a) the right of ingress to and egress from the Easement Area over the Grantor Property by the most reasonable route(s) designated on Exhibit B or otherwise mutually agreed in writing;
(b) the right to construct, install, operate, inspect, maintain, repair, replace, relocate within the Easement Area, and remove Improvements (defined in Section 5.1) reasonably necessary to accomplish the Permitted Uses; and
(c) such incidental rights as are reasonably necessary for the full enjoyment of the Easement Rights, subject to the terms and conditions herein.
2.2 Nature of Easement. The Easement Rights are [appurtenant to the real property owned by Grantee and] intended to run with the land and bind Grantor, Grantee, and their respective successors and assigns. The Easement is non-exclusive; Grantor reserves the right to use and to grant additional rights in the Easement Area so long as such rights do not materially interfere with Grantee’s Permitted Uses.
2.3 Acceptance. Grantee hereby accepts the Easement Rights and agrees to perform and observe all obligations imposed herein.
3. CONSIDERATION
3.1 Easement Fee. Grantee shall pay Grantor the sum of $[AMOUNT] (“Easement Fee”) on or before the Effective Date.
3.2 Additional Consideration. [Describe any continuing payments, cost-sharing, or other consideration, e.g., maintenance cost allocations.]
3.3 Independent Consideration. The Parties acknowledge that the Easement Fee constitutes separate and independent consideration supporting all covenants herein, including those that survive termination.
4. PERMITTED USES & USE RESTRICTIONS
4.1 Permitted Uses. The Easement Rights may be used solely for the following purpose(s):
☐ Access/Ingress & Egress
☐ Utility Installation & Operation (water, sewer, electric, gas, telecom)
☐ Drainage/Stormwater Management
☐ Pipeline/Conduit
☐ Other: [____]
4.2 Use Restrictions. Grantee shall:
(a) use the Easement Area solely for the Permitted Uses;
(b) comply with all Applicable Laws;
(c) not unreasonably impede Grantor’s use of the Grantor Property; and
(d) avoid hazardous or unsafe conditions.
4.3 Grantor Reserved Rights. Grantor retains the right to use the Easement Area for any purpose not inconsistent with the Easement Rights, including farming, landscaping, and installation of compatible utilities, provided Grantor’s activities do not materially interfere with Grantee’s Permitted Uses.
5. IMPROVEMENTS; MAINTENANCE & REPAIR
5.1 Improvements. Grantee may, at its sole cost, construct, install, maintain, repair, replace, relocate, or remove improvements reasonably necessary to accomplish the Permitted Uses (collectively, “Improvements”), subject to:
(a) prior submission of plans and specifications to Grantor for review and reasonable approval (approval deemed granted if no written objection within [15] days); and
(b) compliance with all permitting and regulatory requirements.
5.2 Maintenance & Repair. Grantee shall keep the Easement Area and Improvements in a neat, safe, and good condition, promptly repairing any damage caused by Grantee. Grantor shall have no maintenance obligations except for damage caused by Grantor.
5.3 Restoration. Upon completion of any construction or maintenance activity, Grantee shall restore the Easement Area and any affected portion of the Grantor Property as nearly as reasonably possible to its prior condition, ordinary wear and tear excepted.
6. TERM; TERMINATION & RELEASE
6.1 Term. The Easement Rights shall commence on the Effective Date and shall continue [in perpetuity / until ____] unless terminated earlier pursuant to this Section.
6.2 Voluntary Termination. The Easement may be terminated at any time by a written instrument executed and acknowledged by Grantor and Grantee, in recordable form, and recorded in the office of the Register of Deeds for the county in which the Grantor Property is located.
6.3 Termination for Abandonment. Grantor may initiate termination if the Easement is Abandoned, by serving written notice on Grantee. If Grantee fails to resume material use within [90] days after receipt of such notice, Grantor may record a Release & Termination Instrument substantially in the form of Exhibit D.
6.4 Termination for Breach. A non-breaching Party may terminate the Easement following (a) an uncured Event of Default under Section 11, and (b) recordation of a Release & Termination Instrument.
6.5 Effect of Termination. Upon termination, the Easement Rights shall cease, and Grantee shall, at Grantee’s cost, remove Improvements (unless Grantor elects in writing to retain them) and restore the Easement Area.
7. REPRESENTATIONS & WARRANTIES
7.1 Mutual. Each Party represents and warrants 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 in accordance with its terms; and
(d) its execution, delivery, and performance do not violate any agreement to which it is a party.
7.2 Grantor Additional Representations. Grantor further represents that:
(a) Grantor holds fee simple title to the Grantor Property free and clear of all liens, encumbrances, and easements other than those of record;
(b) no consents (other than lender consent disclosed on Schedule 7.2) are required for Grantor to grant the Easement; and
(c) there is no pending condemnation or similar proceeding affecting the Grantor Property.
7.3 Survival. All representations and warranties survive the execution and delivery of this Agreement.
8. COVENANTS OF THE PARTIES
8.1 Compliance with Laws. Each Party shall comply with all Applicable Laws, including environmental, safety, and land-use regulations, with respect to its activities on the Grantor Property.
8.2 Hazardous Materials. Neither Party shall introduce or permit the release of Hazardous Materials in violation of Environmental Laws. The responsible Party shall promptly remediate any contamination it causes, at its sole cost.
8.3 Relocation. Upon Grantor’s written request, Grantee shall relocate the Improvements within the Grantor Property to another mutually acceptable location, provided:
(a) Grantor demonstrates a reasonable necessity for relocation;
(b) relocation does not materially impair Grantee’s Easement Rights; and
(c) Grantor pays all reasonable relocation costs.
8.4 Notice & Cooperation. Each Party shall promptly notify the other of any material event, claim, or governmental inquiry affecting the Easement Area and shall reasonably cooperate in responding thereto.
8.5 Insurance. Each Party shall maintain the insurance coverages described in Exhibit C for so long as it conducts activities in the Easement Area.
9. INSURANCE
9.1 Coverage Requirements. Without limiting its indemnity obligations, Grantee shall maintain at least the following:
(a) Commercial General Liability with limits not less than $[1,000,000] per occurrence and $[2,000,000] aggregate;
(b) Workers’ Compensation as required by SD Law;
(c) [Automobile Liability, Contractors Pollution Liability, etc., as applicable].
9.2 Additional Insured. Grantor shall be named as an additional insured on Grantee’s liability policies.
9.3 Certificates. Upon request, each Party shall furnish certificates and endorsements evidencing required coverage.
[// GUIDANCE: Modify limits to satisfy project-specific risk profile and lender/insurer requirements.]
10. INDEMNIFICATION; LIMITATION OF LIABILITY
10.1 Indemnification by Grantee. Grantee shall indemnify, defend, and hold harmless Grantor and Grantor’s Affiliates, successors, and assigns from and against any and all claims, causes of action, liabilities, losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from:
(a) Grantee’s breach of this Agreement;
(b) Grantee’s negligence or willful misconduct; or
(c) violations of law by Grantee, its employees, agents, or contractors,
except to the extent caused by Grantor’s gross negligence or willful misconduct.
10.2 Indemnification by Grantor. Grantor shall indemnify, defend, and hold harmless Grantee and its Affiliates, successors, and assigns from and against any claims arising out of Grantor’s breach, negligence, or willful misconduct, except to the extent caused by Grantee.
10.3 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.
10.4 Survival. This Article 10 survives expiration or termination.
11. EVENTS OF DEFAULT; REMEDIES
11.1 Events of Default. A Party is in default if it:
(a) fails to make a monetary payment when due and such failure continues for [10] days after written notice;
(b) fails to perform any non-monetary obligation and such failure continues for [30] days after written notice (or, if non-curable within 30 days, fails to commence and diligently pursue cure);
(c) becomes insolvent, makes an assignment for creditors, or files for bankruptcy; or
(d) intentionally violates Applicable Law in connection with this Agreement.
11.2 Remedies. Upon an Event of Default, the non-defaulting Party may:
(a) seek specific performance, injunctive relief, or any other equitable remedy;
(b) recover Actual Damages;
(c) suspend further performance; or
(d) terminate the Easement pursuant to Section 6.4.
11.3 Attorneys’ Fees. The prevailing Party in any action to enforce this Agreement is entitled to recover reasonable attorneys’ fees, court costs, and other litigation expenses.
12. RECORDING; TITLE & FURTHER ASSURANCES
12.1 Recording. Promptly following execution, Grantee shall cause this Agreement (or a memorandum thereof) and any subsequent amendments, releases, or terminations to be duly acknowledged and recorded in the office of the Register of Deeds of [COUNTY], South Dakota, in compliance with SD recording statutes, at [Grantee’s / Grantor’s / split] cost.
12.2 Title Matters. Grantor shall deliver a current commitment for an owner’s policy of title insurance (or other evidence of title acceptable to Grantee) showing the Easement as a permitted encumbrance. [// GUIDANCE: Omit if not needed.]
12.3 Further Assurances. Each Party, at its own cost, shall execute and deliver such additional instruments and take such further actions as the other Party may reasonably request to effectuate this Agreement.
13. TAXES & ASSESSMENTS
Grantee shall pay any personal property taxes and assessments levied against its Improvements. Real property taxes attributable to the Grantor Property shall remain Grantor’s responsibility unless specifically increased solely because of Grantee’s Improvements, in which case Grantee shall reimburse Grantor the incremental increase.
14. DISPUTE RESOLUTION
14.1 Governing Law. This Agreement is governed by and construed in accordance with SD Law.
14.2 Forum Selection. Except as provided in Section 14.3, the Parties irrevocably submit to the exclusive jurisdiction of the state courts located in [COUNTY], South Dakota.
14.3 Optional Arbitration. [OPTIONAL—CHECK BOX IF ELECTED] ☐ The Parties agree that any dispute arising out of or relating to this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The seat of arbitration shall be [CITY], South Dakota. Judgment on the award may be entered in any court of competent jurisdiction.
14.4 Jury Waiver. [OPTIONAL] Each Party knowingly and voluntarily waives its right to a trial by jury in any litigation arising out of this Agreement.
14.5 Specific Performance. The Parties acknowledge that monetary damages may be inadequate to remedy breach of the covenants herein; therefore, each Party is entitled to seek specific performance and injunctive relief without the necessity of posting bond.
15. GENERAL PROVISIONS
15.1 Amendment; Waiver. No amendment or waiver is effective unless it is in writing, signed by the Party against whom enforcement is sought, and (where required) recorded. Waiver of any breach is not waiver of any other or subsequent breach.
15.2 Assignment; Binding Effect. Grantee may assign its Easement Rights only in connection with conveyance of the dominant estate or with Grantor’s prior written consent, which shall not be unreasonably withheld. This Agreement binds and benefits the Parties and their respective successors and permitted assigns.
15.3 Severability. If any provision is held invalid or unenforceable, it shall be severed and the remainder construed to effectuate the Parties’ intent as closely as possible.
15.4 Entire Agreement. This Agreement (including the Exhibits) constitutes the entire agreement of the Parties with respect to the Easement and supersedes all prior or contemporaneous understandings.
15.5 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which is deemed an original, and all of which together constitute one instrument. Signatures delivered by electronic means (e.g., PDF or DocuSign) are binding for all purposes.
15.6 Notices. All notices must be in writing and delivered (i) by certified U.S. mail, return receipt requested, (ii) by nationally recognized overnight courier, or (iii) by email with confirmation of receipt, in each case addressed to the Parties at the addresses set forth below (or such other address as a Party designates in writing). Notice is deemed given on actual receipt or refusal.
Grantor Notice Address:
[NAME]
[ATTN:]
[STREET]
[CITY, STATE ZIP]
Email: [____]
Grantee Notice Address:
[NAME]
[ATTN:]
[STREET]
[CITY, STATE ZIP]
Email: [____]
15.7 Interpretation. Headings are for convenience only and do not affect interpretation. “Including” means “including, without limitation.”
16. EXECUTION & ACKNOWLEDGMENT
IN WITNESS WHEREOF, the Parties have executed this Easement Agreement as of the Effective Date.
GRANTOR:
[GRANTOR LEGAL NAME]
By: ____
Name: ____
Title: ____
GRANTEE:
[GRANTEE LEGAL NAME]
By: ____
Name: ____
Title: ____
NOTARIAL ACKNOWLEDGMENT
State of South Dakota )
: ss.
County of ______ )
On this ___ day of _, 20_, before me, a Notary Public within and for said State, personally appeared _____, known to me (or satisfactorily proven) to be the person(s) who executed the foregoing instrument on behalf of [GRANTOR], acknowledged that he/she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My Commission Expires: _______
[Repeat acknowledgment block for Grantee, or combine if permitted.]
EXHIBIT A
Legal Description of Grantor Property
[Attach metes-and-bounds or lot/block description]
EXHIBIT B
Easement Area Depiction / Metes-and-Bounds
[Attach survey or scaled drawing]
EXHIBIT C
Insurance Requirements
[List specific coverage types, limits, additional insured wording, waiver of subrogation, etc.]
EXHIBIT D
Form of Release & Termination Instrument
[Short-form, recordable document terminating the Easement]
[// GUIDANCE: Record this Agreement (or a memorandum) promptly. Verify execution formalities (acknowledgment, witness requirements) conform to current SD recording standards. Update insurance limits, choice-of-law, arbitration, and jury-waiver language to satisfy client objectives and lender or municipal mandates.]