Easement Agreement - Wisconsin

[DRAFT] EASEMENT AGREEMENT

(Wisconsin – Perpetual/Term Easement Template)

RECORDING COVER-SHEET DATA

Before submission, format the final first page to reserve a blank 3-inch by 3-inch space in the upper-right corner for recording information. Wis. Stat. § 59.43(2m)(a)3.

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Grant of Easement & Scope of Rights
4. Consideration & Recording Information
5. Representations & Warranties
6. Covenants & Restrictions
7. Maintenance, Repairs & Utilities
8. Insurance & Risk Allocation
9. Indemnification; Limitation of Liability
10. Default; Remedies
11. Termination & Release Procedures
12. Dispute Resolution
13. General Provisions
14. Execution Block
15. Exhibits & Schedules

1. DOCUMENT HEADER

EASEMENT AGREEMENT (this “Agreement”) is entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:

• [GRANTOR LEGAL NAME], a [STATE & TYPE OF ENTITY/INDIVIDUAL], having a mailing address of [ADDRESS] (“Grantor”); and
• [GRANTEE LEGAL NAME], a [STATE & TYPE OF ENTITY/INDIVIDUAL], having a mailing address of [ADDRESS] (“Grantee”).

Grantor and Grantee are sometimes referred to individually as a “Party” and collectively as the “Parties.”

RECITALS

A. Grantor is the fee simple owner of certain real property located in [COUNTY] County, Wisconsin, more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the “Burdened Property”).
B. Grantee desires to obtain, and Grantor is willing to grant, a(n) [SELECT: perpetual / term-limited], [SELECT: exclusive / non-exclusive] [SELECT: appurtenant / in gross] easement for the Permitted Use (defined below) over, across, under, and/or upon a portion of the Burdened Property described in Exhibit B (the “Easement Area”).
C. The Parties intend that this Agreement be executed and recorded in accordance with Wis. Stat. ch. 706, including § 706.05, so as to constitute notice to third parties of the Easement granted herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:

2. DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below. All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Section in which they first appear.

“Actual Damages Cap” – has the meaning set forth in Section 9.4.
“Burdened Property” – has the meaning provided in Recital A.
“Commencement Date” – the date on which the Easement becomes operative pursuant to Section 3.3.
“Easement” – the easement estate granted in Section 3.1.
“Easement Area” – has the meaning provided in Recital B and shown on Exhibit B.
“Effective Date” – has the meaning provided in the Document Header.
“Force Majeure Event” – any event beyond a Party’s reasonable control as further described in Section 10.4.
“Permitted Use” – the specific use(s) identified in Section 3.2.
“Term” – the period identified in Section 11.1.

3. GRANT OF EASEMENT & SCOPE OF RIGHTS

3.1 Grant. Subject to the terms and conditions herein, Grantor hereby grants and conveys to Grantee, its successors and assigns, a [SELECT: perpetual / term-limited] [SELECT: exclusive / non-exclusive] easement over the Easement Area for the Permitted Use (the “Easement”), together with reasonable rights of ingress to and egress from the Easement Area across the Burdened Property.

3.2 Permitted Use. The Easement may be used solely for [e.g., constructing, operating, maintaining, repairing, replacing, and removing overhead and underground utility lines; driveway access; pedestrian/bike path; drainage; etc.] (collectively, the “Permitted Use”). Any use not expressly included in the Permitted Use is prohibited without Grantor’s prior written consent.

3.3 Commencement; Possession. The Easement shall commence on the later of (a) the Effective Date, or (b) [DATE / CONDITION PRECEDENT, if any] (the “Commencement Date”).

3.4 Exclusive/Non-Exclusive Nature. The Easement is [exclusive / non-exclusive]. If non-exclusive, Grantor reserves the right to use, and to grant additional rights in, the Easement Area so long as such use does not materially interfere with Grantee’s Permitted Use.

3.5 Improvements.
(a) Grantee may construct Improvements in the Easement Area in furtherance of the Permitted Use, subject to plans reasonably approved in writing by Grantor and all Applicable Laws.
(b) Title to Improvements shall reside with [SELECT: Grantee / Grantor] unless otherwise agreed.

3.6 No Public Dedication. Nothing herein shall be deemed to create a public dedication, and the Easement shall be deemed private and personal to the Parties and their permitted successors and assigns.

4. CONSIDERATION & RECORDING INFORMATION

4.1 Consideration. In consideration of the Easement, Grantee shall pay Grantor [MONETARY AMOUNT] on or before the Commencement Date and perform the obligations herein.

4.2 Recording Requirements.
(a) Upon full execution and delivery, this Agreement shall be submitted to the Register of Deeds for each Wisconsin county in which affected land lies. Wis. Stat. §§ 706.02(1)(g), 706.05(1).
(b) Before submission, Wisconsin counsel shall confirm that the instrument identifies the parties, land, easement interest, and every material term governing how the interest arises, continues, or ends; bears every signature required by § 706.02; and contains an authentication authorized by § 706.05(2)(b).
(c) If a married grantor's homestead interest is affected, each spouse must sign or join in a separate conveyance unless a statutory exception applies. Wis. Stat. § 706.02(1)(f).
(d) The final recording copy must comply with Wis. Stat. § 59.43(2m), including the document title, 3-inch-by-3-inch recording space, return information, any county-required parcel number, legible grantor/grantee/notary names, drafter name, page size, and margins.
(e) Attach a current legal description sufficient for § 706.05(2)(c) and § 59.43(2s). Section 706.05(2m)(b)1. contains a narrow full-description exception for specified utility-line or facility easements; do not assume that exception applies to another easement type or that it excuses a usable description of the easement area.
(f) An amendment, assignment, subordination, release, or termination submitted for recording must identify the affected prior recorded document number when current law requires it.
(g) Grantee shall bear recording costs unless the parties complete a different allocation here: [________________________________]. Any transfer-fee filing or exemption must be separately reviewed for this transaction.

5. REPRESENTATIONS & WARRANTIES

5.1 Mutual Representations. Each Party represents and warrants to the other that:
(a) it has full power and authority to enter into and perform this Agreement;
(b) the execution and performance of this Agreement have been duly authorized by all requisite action; and
(c) this Agreement constitutes the valid and binding obligation of such Party, enforceable in accordance with its terms.

5.2 Grantor’s Additional Representations. Grantor further represents and warrants that:
(a) Grantor is the fee simple owner of the Burdened Property, free of monetary liens or encumbrances that would preclude granting the Easement;
(b) Grantor has not previously conveyed any right that conflicts with the Easement; and
(c) to the best of Grantor’s knowledge, no Hazardous Materials (as defined under Applicable Law) are present in violation of law within the Easement Area.

5.3 Survival. All representations and warranties shall survive the execution and delivery of this Agreement and shall not be deemed merged into any deed or instrument subsequently delivered.

6. COVENANTS & RESTRICTIONS

6.1 Grantor Covenants.
(a) Interference. Grantor shall not use, and shall not permit any third party to use, the Easement Area in any manner that unreasonably interferes with Grantee’s rights hereunder.
(b) Notice of Third-Party Claims. Grantor shall promptly notify Grantee of any known third-party claim that may adversely affect the Easement.

6.2 Grantee Covenants.
(a) Compliance. Grantee shall perform all activities within the Easement Area in accordance with Applicable Laws and industry standards.
(b) Restoration. Upon completion of any construction or maintenance, Grantee shall restore disturbed portions of the Easement Area and adjacent lands to substantially the same condition as prior to entry, reasonable wear and tear excepted.
(c) Liens. Grantee shall keep the Burdened Property free from any construction or mechanic’s liens arising out of Grantee’s work.
(d) Environmental. Grantee shall not release Hazardous Materials in violation of Applicable Laws and shall promptly remediate any release caused by Grantee.

6.3 Negative Covenants. Neither Party shall interfere with the other’s use of its respective property and rights except as expressly permitted herein.

7. MAINTENANCE, REPAIRS & UTILITIES

7.1 Responsibility. Grantee shall, at its sole cost, maintain, repair, and replace (as necessary) all Improvements located within the Easement Area.

7.2 Access by Grantor. Grantor may enter the Easement Area (with reasonable prior notice) to inspect Grantee’s maintenance and compliance, provided that such entry does not unreasonably interfere with the Permitted Use.

7.3 Utilities. Grantee shall be responsible for all utilities serving the Improvements, if any.

8. INSURANCE & RISK ALLOCATION

8.1 Insurance Requirements. Throughout the Term, Grantee shall maintain, at its sole expense, the following insurance, naming Grantor as an additional insured:
(a) Commercial General Liability insurance with limits of not less than [$____ per occurrence / $____ aggregate];
(b) Workers’ Compensation insurance as required by Wisconsin law; and
(c) [Other coverage as appropriate].

8.2 Evidence of Coverage. Grantee shall furnish certificates of insurance to Grantor on or before the Commencement Date and upon any renewal.

9. INDEMNIFICATION; LIMITATION OF LIABILITY

9.1 Indemnification by Grantee. To the fullest extent permitted by law, Grantee shall indemnify, defend, and hold harmless Grantor, its Affiliates, and their respective officers, directors, employees, and agents from and against any and all third-party claims, demands, causes of action, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Claims”) arising out of or relating to:
(a) Grantee’s exercise of rights under this Agreement;
(b) any breach of Grantee’s representations, warranties, or covenants; or
(c) the negligence or willful misconduct of Grantee or its contractors, employees, or invitees.

9.2 Indemnification by Grantor. Grantor shall indemnify, defend, and hold harmless Grantee and its Affiliates from and against Claims arising out of (a) any breach of Grantor’s representations, warranties, or covenants, or (b) the negligence or willful misconduct of Grantor or its contractors, employees, or invitees.

9.3 Mutual Procedure. The indemnified Party shall promptly notify the indemnifying Party of any Claim, tender defense, and reasonably cooperate. Failure to give prompt notice shall not relieve the indemnifying Party except to the extent materially prejudiced.

9.4 Limitation of Liability. EXCEPT FOR (i) A PARTY’S INDEMNITY OBLIGATIONS; (ii) LIABILITY FOR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; OR (iii) UNPAID MONIES DUE, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED [“ACTUAL DAMAGES CAP” – INSERT DOLLAR AMOUNT OR “THE AGGREGATE CONSIDERATION PAID”]. NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES.

10. DEFAULT; REMEDIES

10.1 Events of Default. A “Default” occurs if either Party fails to perform any material covenant hereunder and such failure continues for [30] days after receipt of written notice from the non-defaulting Party (or, if the failure is not reasonably curable within such period, if the defaulting Party fails to commence and diligently pursue cure).

10.2 Remedies. Upon a Default, the non-defaulting Party may:
(a) seek specific performance or injunctive relief;
(b) recover its Actual Damages (subject to Section 9.4); and
(c) exercise any other right or remedy available at law or in equity.

10.3 Attorneys’ Fees. The prevailing Party in any action to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and court costs.

10.4 Force Majeure. Neither Party shall be in Default for failure to perform due to a Force Majeure Event, provided it gives prompt notice and resumes performance promptly after cessation of the Force Majeure Event.

11. TERMINATION & RELEASE PROCEDURES

11.1 Term. The Easement is [perpetual] OR [for a term commencing on the Commencement Date and expiring on [DATE] (the “Expiration Date”)].

11.2 Automatic Termination. The Easement shall terminate automatically upon the earliest of:
(a) expiration of the Term (if term-limited);
(b) the date Grantee delivers a written recordable Release of Easement to Grantor;
(c) [OPTIONAL] abandonment, evidenced by Grantee’s failure to use the Easement for the Permitted Use for a continuous period of [___] years; or
(d) merger of title when the Burdened Property and the benefited property come under common ownership such that the Easement is extinguished by operation of law.

11.3 Voluntary Release. Upon termination, the Parties shall execute and record a Release of Easement in the Register of Deeds evidencing termination. Grantee shall remove all Improvements (unless otherwise agreed) and restore the Easement Area.

11.4 Condemnation. If any governmental taking materially impairs the Easement, either Party may terminate this Agreement upon [30] days’ written notice. Any condemnation award shall belong to [SELECT: Grantor / Grantee / apportioned per statute].

12. DISPUTE RESOLUTION

12.1 Governing Law. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Wisconsin, without regard to conflict-of-laws principles.

12.2 Forum Selection. The Parties irrevocably submit to the exclusive jurisdiction of the state courts located in [COUNTY] County, Wisconsin, and waive any objection based on venue or forum non conveniens.

12.3 Arbitration. [OPTIONAL – INSERT IF DESIRED] If the Parties elect arbitration, any dispute shall be finally resolved by binding arbitration administered by [AAA/JAMS] in accordance with its [RULES], and judgment on the award may be entered in any court of competent jurisdiction.

12.4 Jury Trial Waiver. [OPTIONAL] EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING OUT OF THIS AGREEMENT.

12.5 Equitable Relief. Notwithstanding anything to the contrary, either Party may seek temporary or permanent injunctive relief or specific performance in a court of competent jurisdiction for any actual or threatened breach of this Agreement.

13. GENERAL PROVISIONS

13.1 Amendments; Waiver. No amendment or waiver of any provision shall be effective unless in a written instrument executed by both Parties and recorded if affecting real property rights.

13.2 Assignment. This Agreement shall run with the land and inure to the benefit of, and be binding upon, the Parties hereto and their respective successors and permitted assigns. Grantee may not assign the Easement in whole or part without Grantor’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.

13.3 Severability. If any provision is held invalid, the remaining provisions shall remain in full force, and the invalid provision shall be reformed to the minimum extent necessary.

13.4 Entire Agreement. This Agreement (including the Exhibits) constitutes the entire agreement between the Parties with respect to the subject matter and supersedes all prior understandings.

13.5 Notices. All notices shall be in writing and deemed given upon (a) personal delivery, (b) certified mail (return receipt requested), (c) nationally recognized overnight courier, or (d) email with confirmation, to the addresses set forth in the Document Header (or such other address designated by notice).

13.6 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts. An electronic signature or electronically recorded counterpart may be used only if Wisconsin counsel and the receiving county confirm that it satisfies the current conveyance, authentication, and recording requirements in Wis. Stat. §§ 706.02, 706.05, and ch. 140.

14. EXECUTION BLOCK

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

Grantor homestead review: ☐ Not a homestead interest ☐ Married grantor's homestead interest is affected ☐ Counsel determined an exception applies: [________________________________]

GRANTOR:
[GRANTOR LEGAL NAME]
By: ______________________________
Name: ____________________________
Title: _____________________________

GRANTOR'S SPOUSE, IF REQUIRED BY WIS. STAT. § 706.02(1)(f):

Signature: _________________________

Printed Name: ______________________

GRANTEE:
[GRANTEE LEGAL NAME]
By: ______________________________
Name: ____________________________
Title: _____________________________

ACKNOWLEDGMENTS

State of Wisconsin )
County of __________ ) ss.

On this ___ day of __________, 20___, before me, the undersigned Notary Public, personally appeared ______________________________, who acknowledged he/she is the __________ of [GRANTOR LEGAL NAME] and executed the foregoing instrument on behalf of said entity.

______________________________
Notary Public, State of Wisconsin
My Commission Expires: __________

[REPEAT FOR GRANTEE]

Sources and References

• Wis. Stat. § 706.02 — formal requisites
• Wis. Stat. § 706.05 — formal requisites for record
• Wis. Stat. § 59.43(2m) — standard recording format

15. EXHIBITS & SCHEDULES

• Exhibit A – Legal Description of Burdened Property
• Exhibit B – Depiction/Survey of Easement Area
• Exhibit C – Plans and Specifications for Improvements (if applicable)
• Schedule 1 – Insurance Requirements (if expanded)
• Schedule 2 – Environmental Disclosure (if applicable)

[END OF AGREEMENT]