Easement Appurtenant: What It Means And How It Works
Andrew Dehan4-minute read
October 13, 2020
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 did that, chances are that easements appurtenant will come into play, especially if there’s limited access to roadways.
Or maybe right now, you live in a place where your neighbors regularly walk through your yard to get to a park or a lake. Did you know that if they did that over time, that could turn into them having rights to your property?
Read on to learn about what an easement appurtenant is, when you may need it and when you may want to avoid it.
What Is An Easement Appurtenant In Real Estate?
An easement is the right to use another person’s property for a specific and limited purpose that runs with the property. An easement appurtenant is a specific type of easement where two properties are linked together as servient and dominant estates.
The servient estate is the estate that allows the easement, where the dominant estate is the one that benefits from the easement. This type of easement could be something like a shortcut to a public park, access to a utility or a right of way to the street.
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What’s The Difference Between Easement Appurtenant And Easement In Gross?
Easements appurtenant are tied with the land and are 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. The difference is that, 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, they’re people like 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 cannot actively transfer rights to the easement.
How Is An Easement Appurtenant Created?
Easements appurtenant can be created in a few different ways. These include express easements, implied easements, easements of necessity and prescriptive easements.
This is the most common way an easement appurtenant is made. It’s where 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.
If a large tract of land is subdivided, the rights of each piece of property continue the way 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 way is made when there’s a severance of the ownership of the land. It’s similar to an implied easement, but is specifically for parcels of land that, because of the severance, have become landlocked.
A trespasser who crosses your property every day to get to a public lake may have gained an easement to your property because of the nature of the way they’ve used that route.
Each state has different laws regarding how a prescriptive easement is achieved. In general, the trespassing must be open, hostile and occur over a length of time for the trespasser to claim the easement.
Easement Appurtenant FAQs
When it comes to easements, land use and land rights, there can be a lot of questions. Here we’ll try to settle some of the most common questions for you.
Is An Encroachment The Same Thing As An Easement?
An encroachment on your property is not 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. Depending on the state you live in, the period of time you have to address an encroachment varies.
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. This is unlike an easement in gross, which can only be used by the owner that’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 are 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 cannot sell the easement appurtenant without selling the property because the easement runs with the land.
If you want to end an easement, you must sign a release. This is a legal document that releases the servient estate from its obligation to let you use the land.
Another approach for ending the easement is simply not using it anymore. If this is done over a long enough period (as defined by your state), your right to the property will be lost.
You can also merge the two properties so they are no longer two estates, though this may complicate things as your neighbor and you will co-own the merged parcel.
Summary: Easements Appurtenant Run With The Land
Understanding the details of easements can be difficult, but it’s important if you’re a property owner. Knowing about easements appurtenant can work in your favor, whether you’re buying, selling or just maintaining your property.
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