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What are easements?

QUESTION:

A friend was telling me about a lawsuit he was involved in after he bought his home many years ago. It was about an easement he thought he would be getting as part of buying the real estate. But it turned out he lost because it was not the type of easement that would transfer automatically with the land. How do you tell what type of easement you have?

ANSWER:

In order to understand what might have happened to your friend, first understand that an easement is an interest in the land of another person that entitles the owner of such interest to a limited use or enjoyment of the land. The two essential qualities are that it is an interest in land and that it is in the land of another person. It may be either an affirmative easement, involving the doing of some act on the land of another person, such as the right to cross over the other person’s land, or it may be a negative easement, involving a right against another person that he refrain from doing certain things with his land, such as the right to keep the owner of the adjoining land from constructing a building on his land that would obstruct light and air. Usually parcels of real property are affected by easements either as a benefit or as a burden.

Easements can be of two different classes or types, easements appurtenant and easements in gross. "Appurtenant" means belonging to. An easement appurtenant is created for the benefit of and belongs to another parcel of land. Therefore, for such an easement to exist, there must be at least two parcels of land owned by two different owners. One parcel obtains the benefit of the easement and is called the dominant parcel. The other parcel is subject to or burdened by the easement and is called the servient tenement. An easement appurtenant attaches to the land of the owner of the easement and passes with any transfer of that land even if the easement is not specifically mentioned on the transfer deed.

On the other hand, an easement in gross is not created for the benefit of land owned by the easement holder. Rather, it is a personal right and benefits only the named persons to whom it is given. An easement in gross is, however, as much an interest in the land of another as an easement appurtenant would be. It will not, however, transfer automatically with a transfer of the land. It is a right that attaches to the particular person who holds the easement and benefits the person only and not any particular land. Therefore, it must be expressly described in a deed if it is intended to be transferred.

This information is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

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