Easement Appurtenant: What It Means And How It Works

Have you ever thought about buying a big tract of land and dividing it up? Maybe you dream of retiring on 40 acres and just selling off some of the property when you need extra cash. If you do this, chances are that an easement appurtenant will come into play, especially if there’s limited access to roadways.

Let’s say you live in a place where your neighbors regularly walk through your yard to get to a park or a lake. If they did that consistently over a period of time, it could allow them to eventually have rights to your property. This situation is one example of an easement appurtenant.

Let’s take a closer look at what an easement appurtenant can do, when you may need an easement appurtenant and when you may want to avoid this.

An easement is the right to use another person’s property for a specific and limited purpose. An easement appurtenant is a specific type of easement where two properties are linked together as servient tenement and dominant tenement estates.

The servient estate is the estate that allows the easement, while the dominant estate is the one that benefits from the easement. An easement in appurtenant could be something like a shortcut to a public park, access to a utility or a right of way to the street.

Easements appurtenant are tied with the land and recorded as part of the deed. If the servient estate is sold, the new owner must allow the owner of the dominant estate to continue to use the land. Similarly, if the dominant estate is sold, the new owner will have access to the easement.

An easement appurtenant differs from an easement in gross in one key area. With an easement appurtenant, the dominant estate – your neighbor, for example – holds the right to the land. With an easement in gross, the users of the easement aren’t estates, but they’re people like those who work with utility companies or services.

Also, unlike easements in gross, easements appurtenant are tied to the land and transferred with the deed. With an easement in gross, the servient estate can’t actively transfer rights to the easement.

Easements appurtenant can be created in a few ways. These include express easements, implied easements, easements of necessity, and prescriptive easements.

Express Easements

This is the most common way an easement appurtenant is made. Here, an easement is sold or given to a neighboring estate. It’s created by an easement agreement deed in writing between the two estate holders or created by a court order.

Implied Easement

If a large tract of land is subdivided, the rights of each piece of property continue as they were before the division. A right of access over one property is implied if that’s the only way to get to the road or access a utility, thus creating the implied easement.

Easement Of Necessity

This process for creating an easement appurtenant occurs when there’s a severance of the land’s ownership. It’s similar to an implied easement but is specifically for parcels of land that have become landlocked because of the severance.

Prescriptive Easements

Each state has certain laws on how a prescriptive easement is achieved. In general, the trespassing must be open, hostile and occur over a period of time for the trespasser to claim the easement.

A trespasser who crosses your property every day to access a public lake may have gained an easement to your property due to the nature of how they’ve used that route. Again, the rules and laws for a trespasser to claim a prescriptive easement vary from state to state. Prescriptive easements could also be subject to your due diligence – as the property owner – to prevent them ahead of time.

With easements, land use and land rights, a lot of questions may arise. Next up, we’ll answer some of the most common questions for you.

Is an encroachment the same thing as an easement?

An encroachment on your property isn’t an easement, but it could become one. If the trespasser is using your property in an open and hostile manner, you must address it or risk it becoming a prescriptive easement.

The period of time you have to address an encroachment will vary depending on the state where you live. Be sure to seek legal advice before you’re legally bound to remain burdened by the easement.

What does it mean if an easement runs with the land?

This means that the easement arrangement will be transferred to subsequent owners of both estates. In other words, no matter who owns the property, they’ll become the owner of the easement. This is unlike an easement in gross, which can only be used by the owner who’s granted the non-transferable right to use the property.

Can I buy an easement to my neighbor’s property?

Easements are property rights like any other. They can be bought, sold or gifted as the servient estate sees fit. In most cases, the property rights granted by an easement appurtenant are very limited and for a specific purpose. Purchasing an easement appurtenant may cost you more if the easement increases the value of your property.

As the owner of the dominant estate, can I sell or otherwise dispose of my easement?

The owner of the dominant estate can’t sell the easement appurtenant without selling the property. This is because the easement runs with the land.

To end an easement, you can:

• Sign a release. This is a legal document releasing the servient estate from its obligation to let you use the land.

• Stop using the easement. Another approach for ending the easement is simply not using it anymore. If this happens over a long enough period (as defined by your state), you’ll lose your right to the property.

• Merge properties. You can also merge the two properties so they’re no longer two estates. However, this may complicate matters since you and your neighbor will co-own the merged parcel of land.

Understanding the details of easements can be difficult, but it’s important if you’re a property owner. Your newfound education in the easement appurtenant can work in your favor, whether you’re buying, selling or just maintaining your property.

Regardless of your status in the home-buying process, consider expanding your knowledge base on your legal rights by learning more about property lines.