Temporary Construction Easements: Should Condemning Entities Seek Exclusive Or Shared Use?

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.