What is an easement appurtenant? Full guide & examples

One of the most significant concepts in real estate law is an easement appurtenant. This easement creates special rights and duties for property owners. For instance, if you own land that is inaccessible to the road, an easement appurtenant can help. This allows you to cross a neighbor legally in order to get to the road. 

This article describes what an easement appurtenant is, along with all the benefits and how it differs from other easements, such as an easement in gross. Let’s get into this vital real estate concept!

What is an easement appurtenant in real estate terms?

An easement appurtenant allows the owner of a piece of property, known as the dominant estate or easement holder, to use a specific portion of an adjacent property, known as the servient estate, for an obvious purpose, such as gaining access. 

Unlike personal agreements, easements appurtenant run with the land; hence, the new owner of the property will obtain these same rights if you choose to sell the property.They are often used for access routes, shared driveways, and utility rights.

Types of easements appurtenant

Easements appurtenant can be of different classes based on the purpose and the way it was created. The principal types include:

Express easements: Created by a written agreement between property owners, thoroughly describing the purpose and use of the easement. Often, this agreement will be part of the property deed.

Implied easements: Those created by prior use or necessity. For example, where a landowner has been driving across his neighbor’s property for many years to get to the highways, courts may find an implied easement.

Easements by necessity: Comes up when a property becomes landlocked and needs access across the neighboring property. Courts may establish this type of easement if there is no other access route.

Prescriptive easements: These are made when someone uses land for a long time without the owner’s clear permission, usually for many years. In this situation, a property owner may get access rights if they meet certain legal rules.

Main elements of easements appurtenant

Easements appurtenant are distinct from other easements for a couple of reasons:

They run with the land: These easements run with the ownership of the property. That means they affect future owners, not just the original owners.

Benefit and burden on properties: Easements appurtenant involve two properties: the dominant estate, which benefits from the easement, and the servient estate, which bears the burden of the easement.

Defined and limited purpose: Easements appurtenant are for a specific purpose, such as access or utilities. They are typically included in property deeds to clarify.

Common real-life examples 

Access easements: Think about owning a property that doesn’t connect directly to the road. Your neighbor lets you walk across their land to get to yours. This access easement stays with your land, so future owners will also have this right.

Shared driveways: Sometimes two homes share a common driveway. This is usually established as an easement appurtenant that gives both owners the same use of the driveway.

Easements appurtenant vs easements in gross

Real estate professionals should understand the distinction between easements appurtenant vs. easements in gross, as this knowledge is essential for navigating property rights and obligations. Let’s explore the key differences between these two types of easements:

1. Tied to the Land vs. Personal:

Easements appurtenant are directly tied to a specific property and benefit the owner of that property. For example, if a homeowner requires access to a neighboring driveway, an easement appurtenant would grant that right.

On the other hand, easements in gross are typically granted to individuals or companies rather than properties. Utility companies often hold easements in gross to maintain power lines or pipelines, regardless of property ownership changes.

2. Transferability:

A significant difference between easements appurtenant vs. easements in gross is their transferability. Easements appurtenant automatically transfer with the property when it is sold.

This means future owners will continue to benefit from or be subject to the easement. Easements in gross, however, are generally non-transferable unless they are commercial in nature. Personal easements in gross usually end with the death of the holder or the dissolution of the benefiting company.

3. Purpose and Application:

Easements appurtenant often serve property-to-property purposes, like shared access roads, pathways, or drainage systems. They ensure fair and legal use of shared spaces. In contrast, easements in gross are often established for public utilities or infrastructure, like telephone lines or sewage systems. These easements are typically created for operational convenience and are not dependent on the ownership of adjoining properties.

4. Property Owner Rights:

Property owners retain ownership of their land, even with an easement in place. However, they are legally obligated to allow the easement holder access as specified in the agreement. Attempting to block or restrict access can result in legal consequences.

5. Easement Holder Rights:

The easement holder has the right to enter and use the property for its designated purpose. For example, a utility company can access an underground pipe for maintenance. However, the holder must avoid unnecessary damage or interference with the owner’s use of the property. Overstepping these rights can lead to legal actions that may limit or terminate the easement.

6. Court Interventions:

If the easement holder excessively burdens the property or violates the terms of the agreement, the property owner may seek legal remedies. Courts can impose restrictions, order compensation for damages, or even revoke the easement in severe cases.

Understanding the nuances of easements appurtenant vs. easements in gross helps real estate professionals provide accurate advice to their clients. It also ensures smoother property transactions and fosters positive relationships between property owners and easement holders.

The legal side

Easements appurtenant are legal instruments and should be dealt with accordingly.

Records: These easements are always recorded on property deeds, so any subsequent owner is aware of their existence. This legal document safeguards both parties by ensuring that access will be continued and clearly stating the terms.

Dispute resolution: Property owners sometimes disagree on how to use easements or where boundaries are. When this happens, courts typically look at the original easement agreement to sort out the disputes.

Maintenance costs: The duty of maintenance is usually placed on the dominant estate owner, but some agreements provide for shared maintenance or place it on the servient estate owner.

Pros and cons for property owners

Advantages:

Makes property access better: Very useful for landlocked properties.

Adds long-term value: Easements appurtenant can make a property more desirable if they provide important access or shared features.

Easy transfer of rights: It transfers easily, automatically with property ownership, hence future owners will find it easier.

Disadvantages:

Possible value impact on servient estate: An easement might limit how the owner of the servient estate can use their land.

Possible privacy issues: The owner of the servient estate will have less control over certain areas of their property.

Legal liability: Either party is liable in case the easement agreement is breached.

Useful tips for real estate professionals

If you’re a real estate agent or broker, being able to explain easements appurtenant to your clients will make a difference, setting you apart:

Check deeds carefully: Easements should be documented in the property deed. Double-check these details for accurate information.

Explain the good and bad: A buyer must learn about the benefits and limitations involved in an easement appurtenant.

Consult with experts: In complex easement issues, the clarity might come from consulting a real estate attorney or a land surveyor.

Frequently asked questions

Is an encroachment the same as an easement?

No, an encroachment is not an easement, but it can turn into one. If a trespasser utilizes part of your land openly and continuously without your permission, it over time can create a prescriptive easement. The statute of limitations to settle an encroachment varies from state to state, so consult with a legal expert to prevent it from becoming permanent.

What does it mean if an easement is attached to the property?

This means that if an easement runs with the land, the right belongs to the property, not the person who owns it. This ensures that a new property owner will be entitled to any of the benefits or responsibilities on the easement. 

Unlike an easement in gross, which is personal and cannot be sold or otherwise transferred, an easement appurtenant goes along with property ownership.

Can someone purchase the right to use their neighbor’s land? 

Yes, easements can be bought, sold, or given away by the servient estate. Most easements, however, are for specific uses and have limited rights. Purchasing an easement appurtenant may increase a property value, depending, of course, on what it is used for. 

Is the owner of the main property allowed to sell or dispose of its easement? 

No, the owner of the main property can’t sell an easement appurtenant separately from the property. The easement is appurtenant to the land, so it goes with the property unless the property itself is sold. 

How can an appurtenant easement end? 

It can terminate in several ways: 

Sign a release: The owner of the dominant estate can sign a legal document that lifts the easement from the servient estate. 

Abandonment: If the easement isn’t used for a long time (as state law provides), it may expire. 

Consolidation of properties: Easements come to an end when a single owner acquires both the dominant and the servient estates because it is no longer needed. 

Wrapping-up 

Easements appurtenant are one of the fundamental concepts in the realm of real estate and a necessity in creating legal access between properties. They attach to the land, transfer seamlessly with ownership, and serve important functions like access and utility rights. Knowing about such easements helps buyers, sellers, and real estate agents handle property deals confidently. 

In real estate licensing exams, great importance is placed on the understanding of easements appurtenant, their uses, and legal effects. Are you ready to ace your real estate exam? Our study materials at Lexawise cover all important topics, ensuring you are ready to pass on the first try.