Understanding Easement Appurtenant vs Easement in Gross

Posted on August 12, 2024August 11, 2024 by Jason Somers

When you buy an existing piece of property, you may discover that an easement has been placed on the land. An easement describes a property right that provides another business or person with access to a small portion of the land for a specific purpose. One example of an easement is an affirmative one, which might allow a neighbor to cut through a yard to get where they need to go. The homeowner can’t legally block this path.

Many types of easements can be attached to a property. Since each easement has a different meaning, it’s important to understand what they do and how they can impact your property rights. This guide provides a comprehensive overview of easement appurtenant vs easement in gross.

What Is an Easement?

An easement is a type of agreement that provides a person, business, or entity with the right to access another person’s property. Even though the entity isn’t in the title, they can legally use part of the property. Keep in mind that this doesn’t prevent the owner from selling their property. However, the easement will likely apply to the new owner as well.

There are several methods that can be used to start an easement. Many private easements are created between neighbors. In comparison, public easements can be started by a utility or municipal agency. It’s common for utility providers to obtain easements for sewer lines, drainage, and water service. While many easements are above ground, they may also be below ground. A property can consist of multiple easements.

The type of easement that’s created also depends on where you live. For example, homeowners in urban locations may need to share driveways with neighbors. If you live in a coastal town or city, the public may have access to a portion of the beach that’s part of your private property. If a homeowner doesn’t have easy access to a public road, they might need to drive through another property to reach it, which can lead to the formation of an easement.

When an easement is created, the business or person who benefits from it will have a legal right to use the property in the manner that’s described in the easement. If the homeowner attempts to block access, a lawsuit could be filed against them. There are also times when easements aren’t made properly, which can lead to legal issues and potential nullification.

Easement Appurtenant

An easement appurtenant is a situation that commonly arises when an easement is in place. Let’s say that you live on a large lakefront property. If your next-door neighbor needs to walk through your land to reach the lake, they could eventually gain rights to your property.

Once an easement appurtenant is created, two separate properties are linked together. They exist as dominant tenement and servient tenement estates. The dominant estate is the property that benefits directly from the easement, while the servient estate is the one that effectively allows it. An easement in appurtenant might involve utility access or a right of way.

Keep in mind that appurtenant easements can last forever, which means that the two properties will continue to be tied together. In many cases, an appurtenant easement will increase the dominant estate’s value.

Easement in Gross

An easement in gross can be made without requiring the two properties to be adjoined. A person or business can gain the right to use another individual’s property for a purpose that’s unrelated to ownership of land. While this easement doesn’t benefit a piece of land, it can be useful for the individual or business that receives it.

Keep in mind that this type of easement isn’t automatically transferred to a buyer unless it’s permitted within the original agreement. The primary recipient of the easement will still have access to it even after their property is transferred.

There are many examples of this easement, such as a utility company using private property to perform maintenance. If you use another homeowner’s land to go fishing regularly, you may be able to take advantage of this easement. Your rights are completely unrelated to any property you own.

Key Differences Between Easement Appurtenant and Easement in Gross

As touched upon previously, an easement appurtenant is tied to the land, which means that it will be included as part of the property’s deed. When the servient estate is sold, the dominant estate will still have the right to use the land as described in the easement. If the owner of the dominant estate sells their property, the new owner can continue using the easement.

With an easement appurtenant, your neighbor will have a right to your land. In comparison, an easement in gross is tied to an individual as opposed to the land. For example, the workers who provide utility services will have access to this easement.

When an easement appurtenant is transferred with the deed, the new owner of the servient or dominant estate must always adhere to the guidelines. The rights to an easement in gross can’t be transferred.

Since an easement appurtenant is tied to the land, the dominant estate should benefit from an increase in property value. An easement appurtenant lasts forever. In comparison, an easement in gross lasts until the death of the grantee. Keep in mind that easement disputes can arise depending on how the agreement was made. Some of the more common disputes include the following:

• Identifying the person who is responsible for maintaining the easement
• Whether the easement owner is misusing the piece of land
• The scope and limitations of an easement
• Where the easement is located
• Whether the easement actually exists

How Easements Are Created and Terminated

There are numerous methods you can use to create an easement, which include everything from an express grant to a necessity. An express easement involves selling or giving an easement to an adjoining estate. This agreement must be put in writing and signed by both estate holders. It can also be created with a court order.

You can also draw up an easement based on necessity. Let’s say that a homeowner provides a beneficiary with 30 acres of a 100-acre lot in their will. If there’s no road access on this portion of land, the recipient may be able to claim an easement via necessity that allows them to reach the road by crossing neighboring land.

An implied easement is similar to one that’s created by necessity. If a sizable piece of land is divided into multiple parts, the rights associated with each piece remain the same as they were before the separation. A right of access is implied if someone needs to reach a utility or road.

You may also gain access to a prescriptive easement. Keep in mind that laws about prescriptive easements vary from state to state. In most states, this type of easement occurs when someone trespasses on land openly and in a hostile manner for an extended period. The trespasser can then claim this easement.

An example of a prescriptive easement is when a trespasser crosses your property nearly every day to get to a public park. Even if you didn’t grant this easement, the trespasser can still benefit from it. States usually set a duration that must be met before a prescriptive easement can be granted. For example, California law states that a portion of a property needs to be used regularly for five years to create a prescriptive easement.

Ending an easement is very difficult. There are, however, a few options that might be available to you depending on the type of easement that’s in place. If you want an easement removed, it’s crucial that you don’t interfere with it during the removal process.

An easement in gross won’t be voided until the person who holds it passes away. However, this person can formally agree to end the easement, which means that you could negotiate it with them. The termination of the agreement may need to be approved by the court as well. Prescriptive and appurtenant easements will only end if the other party provides a formal written agreement.

Legal and Practical Considerations

Easements can significantly alter the course of a real estate transaction. If there are multiple easements on the property, a prospective buyer may be unwilling to offer the asking price. On the other hand, a dominant estate that has one or more easements with a servient estate may sell for a lot more than the price it was bought at.

Easements play a significant role in land development and planning. For example, developers must identify how utility easements will be applied to the land. Since an easement can’t be blocked or altered, it’s crucial that the developer doesn’t make this type of mistake during the design or construction process.

For many easements, clear documentation is needed to ensure the agreement is legal and recognized by the courts. If you believe that you should have access to an easement on another person’s property, it’s highly recommended that you seek advice from a legal professional. A lawyer who’s familiar with property law can also help you resolve disputes related to easements.

Conclusion

From neighbors to utility companies, there are numerous entities that can obtain an easement on the property you own. Most easements aren’t noteworthy and shouldn’t lead to conflicts between you and the easement holder. If you’re about to make an offer on a property, understanding the differences between easement appurtenant and easement in gross is necessary to ensure you make an informed decision. With this knowledge, you may also find a way to end the easement or negotiate with your neighbor to have the agreement terminated.