Eminent Domain Report

During Nossaman’s recent webinar, An Introduction to the Right of Way Acquisition and Condemnation Process, an attendee raised a practical question that agencies, utilities, and right-of-way professionals frequently encounter: when acquiring a temporary construction easement (TCE), should the condemning entity require exclusive or non-exclusive use of the TCE area?

As with many right-of-way issues, the answer depends on the project.

While exclusive use may provide greater control and reduce construction risks, it can also increase acquisition costs and create significant impacts for property owners. Non-exclusive use may reduce disruption to property owners, businesses, and tenants by preserving access to portions of the property during construction, but it is not always compatible with the work being performed. The best approach depends on the nature of the construction activities, the associated safety risks, the needs of the property, and the overall project schedule.

When Exclusive Use Makes Sense

Some projects require exclusive possession of the TCE area to allow the work to proceed safely and efficiently.

Construction involving heavy equipment, trenching, excavation, crane operations, or high-voltage facilities may leave little room for shared use. In these situations, contractors often need complete control over the work area to protect workers, maintain safety protocols, and avoid delays.

Exclusive use may also simplify risk management. When one party controls the construction area, agencies and contractors can more easily address safety, liability, and access issues.

There can also be schedule and cost benefits to exclusive use. Restricting access may allow contractors to work more efficiently, avoid coordinating around owner activities, and reduce the risk of interruptions that could slow construction. In some cases, the resulting construction savings may outweigh the additional acquisition costs associated with obtaining exclusive rights.

When Non-Exclusive Use May Work

Not every project requires the owner to stay out of the TCE area.

Some construction activities allow continued owner access to all or part of the property. Landscaping, restoration work, limited utility improvements, or work along the edge of a parcel may permit non-exclusive use without compromising safety or construction progress.

Preserving access can be especially important for properties with driveways, customer parking, loading areas, or agricultural operations. In many cases, the owner’s primary concern is not the temporary use of the land itself, but maintaining access to the property during construction.

Non-exclusive easements may also reduce acquisition costs. Because the property owner retains some ability to use the affected area, the impacts are often less severe than under an exclusive easement. As a result, compensation may be lower than if the agency completely excludes the owner from the TCE area.

Balancing Project Needs and Property Impacts

The decision should focus on the specific project and property involved.

Condemning entities should consider the nature of the construction, the risks associated with the work, and the effect that access restrictions will have on the property owner or business. A TCE affecting an unused portion of a parcel may justify a different approach than one affecting a primary driveway, business entrance, parking area, or farm access road.

Cost is also an important consideration. Exclusive easements often require greater compensation because they completely exclude the property owner, tenants, or businesses from the easement area. However, non-exclusive easements may require additional coordination, accommodations, or phased construction that can increase construction costs or extend the schedule.

In many situations, the best solution is not strictly exclusive or non-exclusive. Alternative access routes, phased construction, designated work areas, or other project-specific accommodations may allow condemning entities to meet construction needs while reducing impacts on property owners.

Conclusion

There is no one-size-fits-all answer to whether a temporary construction easement should be exclusive or non-exclusive. Condemning entities should evaluate the construction activities, safety considerations, project schedule, acquisition costs, and impacts on the affected property. A thoughtful, project-specific approach can help balance the needs of construction with the realities faced by property owners, businesses, and tenants.