Easements and Contracts in Trenchless Construction Projects


Legalities relating to any construction project are always difficult to deal with and must be addressed prior to the start of the project to avoid time and money losses.

When caught in the crosshairs of the legal system, legal troubles not only cost money, but they also require a lot of time. In addition to fines levied for missing project deadlines, lost time in a construction project represents a financial loss in terms of hired employees and machinery. Planning is the first stage in a trenchless project’s success.



Acquisition of land easements is the most crucial factor in the planning phase. But, thanks to trenchless technology, landowners are now more comfortable entrusting their property to an hdd contractor.


An easement refers to the legal right for one party to use another’s property in some way, either for transportation or utilities purposes. Easements are typically entered into by the property owner or a real estate agent. In order to grant an easement, certain formalities must be followed in order to protect the rights of both parties involved.

In trenchless construction projects, an easement is a right to tunnel under private property or public land. Easements are often granted by the government for underground utilities such as fiber optics and telephone lines. The act of granting an easement in this way is referred to as “dedication” of the easement.

For example, a phone company may wish to install a new communications line along an existing pole, but it must first run the cable under the private land of several property owners. Trenchless construction avoids disrupting existing landscaping as well as roadside utilities such as power lines and gas mains with long trenches.

However, unless granted permission by owners of land, it is illegal to cross private property. Companies should obtain a right-of-way or easement from the owners of affected property before undertaking any trenchless construction project.

In general, granting an easement requires the following steps:

  1. Trenchless construction is frequently used for water and sewer lines as well as gas pipelines and electrical utilities. The use of HDD is often restricted in municipal areas. However, contractors must still obtain the rights to property before they can begin work.

For example, construction activity may be prohibited near rivers and streams. Pipelines that are only a few feet under ground cannot be viewed visually by landowners, so special precautions must be taken to ensure that work is being conducted in accordance with the grant of easement.

In general, a written agreement should be signed by both parties involved as well as any witnesses. The document must contain the name and address of all parties involved, the purpose or reason for the use of the homeowners’ property, and a description of land that is being affected by the use.

  1. The document should also give a date on which the easement will expire as well as any terms and conditions of continued ownership. It may be helpful to consult an attorney as part of this process; however, in most cases, the agreement will only be between two parties (the grantor and grantee).

The grantor will usually give the grantee permission to maintain the easement forever, regardless of future changes in ownership or company affiliation. If an immediate sale is expected during the legality of the agreement, it may be beneficial for both parties to sign a temporary document and include language giving way for another arrangement such as a land contract in case the property changes hands before the full sale.

  1. In addition, the grantor must acknowledge that he or she is giving up rights and control of his or her property to the other party, who will have the right to install pipes under ground, for example. If there was no mention of this difference in rights at the time of signing by both parties, then the grantee may be liable for damages.

  1. Finally, both parties must sign the document to validate its legality. Witnesses should also be present during signing to ensure that all copies of the agreement remain identical and that no changes have been made to any of them.

Currently easements are different in nature and can easily be identified by their content and wording. However this may not always be true as more legal interpretation will need to be done in the future due to constantly changing laws.

Easements can cover several categories such as legal, equitable or quasi-easements. Thus it is important that a landowner understands what type of easement has been requested and how it will impact their property ownership rights.



Trenchless projects, like any other construction project, are carried out using contracts which means that there is a contractual relationship between the parties involved in the project.

A contract is a legally binding agreement between an employer and one or more contractors with respect to particular activities concerning the production of goods, or service delivery at specified price, time period and quality, for instance but not limited to building construction projects, engineering projects like tunneling or horizontal directional drilling and infrastructure projects.

It is an important element in construction projects because it keeps all parties involved accountable to each other.

What’s within the contract?

Contracts are of different types but they basically outline the obligations and duties of both parties and also the procedure by which they will be carried out.

For instance, in a typical trenchless construction project, the general or main hdd contractor, as he is referred to in some jurisdictions, would enter into contact with other contractors who would supply equipment and/or labor.

In this regard the contract of a sub-contractor should include a provision obligating the main contractor to pay for or make reasonable efforts to pay for all costs affiliated with the labor, equipment and materials supplied by him.

A construction project is also usually involved in making provisions for payment of the contractors on a formula that is based on prevailing conditions. This payment method may be calculated using different factors in different circumstances.

Some of these factors are:

  • The contractor should be paid on a milestone basis and not a per-diem basis. For instance, the contract could provide for payment of a lump sum to cover each month’s work in conjunction with payment or reimbursement for certain expenses other than actual cost, like overhead charges, traveling allowance etc.

  • Payment may also be based on the percentage of work executed. The percentage is calculated on the basis of total contract amount to be paid in a day or period as agreed upon by the parties involved in the project. Payment may also be made on the number of hours worked and not necessarily on actual work done, provided that reasonable overhead charges are taken into consideration.

  • A contractor must be paid in full upon or during completion of the work provided that all conditions which required him to make performance have been met. The work shall be deemed to have been completed when the contractor complies with all conditions precedent which required him to make performance.

Contracts are awarded by bidding or negotiation. The engineering department submits comprehensive designs and estimates during the bidding phase, but once the work is performed, the chosen contractor is paid based on the actual quantities of work.

Owners will sometimes forego the bidding procedure in favor of a more flexible pricing arrangement that involves selecting and negotiating with their own contractors. These are typically contractors who have previously worked effectively for the owner or have a strong track record.

Four different types of contracts are used:

Fixed Price Contracts

This comprises all expenditures associated with the construction activity, as well as any rewards for early completion or penalties for project delays. When the scope and cost of the task are clear, this contract is typically employed. The contractor bears the risk, which should be considered during the bargaining process.

Cost-plus Contract

This entails the payment of direct or indirect construction costs incurred. The contractor must specify overheads and earnings in a pre-negotiated sum. When the scope of work isn’t clear, this contract is used.

Unit Price Contracts

This sort of contract has a set of specified quantities that have been priced, allowing the owner to monitor for price inflation in the services or items he is hiring. When the scope of work changes, the unit pricing can be changed.

Time and Material Contracts

This entails a contract between the contractor and the owner for an hourly or daily rate that includes additional costs. When the scope of work is unclear, this contract is employed.



Trenchless technology has made construction-related legalities, particularly those relating to purchasing land for easement, far easier than with open-cut installation operations.

To execute a project within the time range allotted, it is necessary to understand legal formalities and implications. Incomplete legal documentation and improper ways of acquiring land for easement or purchase are frequently the causes of project delays. Thus, hiring a legal counselor who is familiar with connected concerns helps reduce the legal load of any building project while also ensuring timely completion of trenchless projects.