Easement appurtenant: What it means and how it works

An easement appurtenant, also known as an appurtenant easement, is a legal right that allows the owner of one piece of land to use a neighboring piece of land for a specific purpose. This can be for several reasons, such as access to a road or driveway. An easement appurtenant is a type of easement that is tied with the land and recorded as part of the deed.

Key takeaways

• An easement in real estate is a legal right to use another person's property for a specific purpose.
• An easement appurtenant is specifically between two parcels of land: the dominant estate and the servient estate.
• This type of easement stays with the land when it’s sold, automatically transferring to future owners.

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. 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.

Here are a few examples of where an easement appurtenant might be created.

• Access to a public road
• Access to a shared drive between properties
• Right to access a utility line
• Right for a balcony to hang over a property line

Because easements appurtenant are tied to the land itself, they generally remain in place even when either property changes ownership. This ensures that the dominant estate continues to benefit from the easement, while the servient estate continues to be bound by it. Such arrangements are common in residential neighborhoods, rural properties, and developments where shared access or utilities are necessary.

What’s the difference between easement appurtenant and easement in gross?

An easement appurtenant and an easement in gross are two different types of easements. Although they have some similarities in that they both allow access to another piece of land, they are also different in a few key ways.

Easement appurtenant

An easement appurtenant is typically between two parties who own adjacent parcels of land. It can also apply to people who need to access a public road. 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.

Easement in gross

An easement in gross is a type of easement that Is typically granted to a utility or oil company. Easements in gross do not transfer with the land and cannot be transferred to a different company, unless there is specific language in the easement allowing for assignment. 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.

How is an easement appurtenant created?

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

Express easement

An express easement is the most common way an easement appurtenant is made. With an express easement, an easement is sold or given to a neighboring estate. It must be finalized by a written agreement or an easement agreement deed in writing between the two estate holders or created by a court order.

Implied easement

An implied easement is not written down but is instead an understanding or oral agreement. An implied easement is created out of necessity, such as when the owner of one home can’t reach a road unless they cross another property.

Easement of necessity

An easement of necessity is similar to an implied easement but deals with the situation where a property is landlocked. If a property or parcel of land is severed from the road, or if distinct parts of the same property are severed from each other due to a property split, it can create an easement of necessity.

When the only reasonable and practical access to the property requires crossing someone else’s land, the property owner can claim an easement of necessity. An easement of necessity is limited solely to the amount of access necessary to allow the landlocked party to reasonably use their land.

Prescriptive easement

A prescriptive easement is another unwritten easement. It happens when someone who might be considered a trespasser is granted the right to use your property because they meet specific criteria:

• Open and notorious use (It’s obvious that the land use is taking place.)
• Actual (The claimant must physically treat the land as their own.)
• Hostile (The land has been used with or without knowledge of the landowner.)
• Exclusive and continuous use of the property (The claimant has used the land continuously for a specific purpose for a certain number of years.)

One example is if children have been cutting through a certain yard for years to get to school. Each state has certain laws on how a prescriptive easement is achieved.

FAQ

Is an encroachment the same thing as an easement?

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

The period 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. So, if you’re able to negotiate a deal with your neighbor, you can purchase an easement. 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. You can’t sell an easement appurtenant without selling the property. However, you may be able to sign a release to end it, stop using the easement, or merge the two properties together.

The bottom line: Easements appurtenant run with the 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.

If you’re ready to buy a home, explore your financing options with Rocket Mortgage®.