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Implied 'Secondary Easement' Rights: What Exactly Does that Easement Grant?

By Jason D. Sapp

'Developer' builds two commercial centers at a busy intersection. The first center is anchored by 'Wally's,' a large general merchandise store upon whose property is located the shopping center's pylon sign on which Developer has retained advertising rights via a sign easement. 'Margo's Market,' (Margo's) one of Wally's main competitors, enters a lease to anchor Developer's second shopping center, and Developer assigns Margo's the 'right to advertise on' the pylon sign in the Wally's center. Sixty days before opening, Margo's attempts to install its identification panel on the pylon sign on Wally's property, but Wally's denies access to Margo's and notifies Margo's that the easement retained by Developer did not provide any access rights to the Wally's center. Does Margo's have access rights to the Wally's center, or was Developer's reservation of rights defective? The answer to this question lies in the theory of implied easement rights, known as 'secondary easements,' that accompany express easement grants.

In preparing or analyzing easements necessary to a commercial development, attorneys too often fail to focus on easement language as closely as they do on the more complex contracts and restrictions necessary to bring the development together. Recognizing and understanding secondary easements is important in order to help clients understand what rights are granted or received in an easement agreement and to address issues in the easement grant in order to avoid future disputes. This article addresses the basic theory behind secondary easements and offers some practical considerations in negotiating and drafting easements.

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