Pre-Development Pitfalls

People emphasize the importance of "building a good foundation" to highlight the importance of a solid start. But construction projects do not begin with digging the foundation. Several crucial steps need to be taken before "boots on the ground" construction starts. Developers of real property need to investigate the suitability of the real property for development and then secure the necessary entitlements that will allow the developer to construct the project. 

However, developers sometimes overlook that site construction activities may require securing easements to access to or through air and/or ground space of adjacent properties from either neighboring property owners or applicable authorities having jurisdiction (AHJ). Construction projects in urban areas can involve significant onsite excavation (say for deep foundations or below-ground parking), which requires the site to be properly shored. To be able to shore the site, a developer may need an easement from the applicable AHJ across the public right-of-way. The project may also require the use of, or access over, adjoining properties, which would necessitate obtaining appropriate easements from adjacent property owners. 

Because property rights extend both into the air and below the ground, unauthorized use of either space constitutes trespassing and is actionable. So before horizontal tiebacks can be used to prepare the site for excavation, or a crane can be erected and swung across the site, the developer should negotiate access easements with neighboring landowners. 

Should a developer fail to obtain easements to access these above or below ground spaces, neighboring landowners could seek restraining orders or injunctions to stop the trespass. This would not only delay the project but paying for easements after the fact, instead of before any development, can be more expensive given the opposing party's significant leverage. 

Therefore, it is critical that developers secure appropriate easements before commencing work on the project.