Easement in gross: Defined and explained

When you own property, you generally have control over that land and can limit who is able to access and use it. For example, you have the legal right to forbid strangers from setting foot on your property.

In some cases, there can be exceptions to this rule. If someone has an easement on your property, it provides them with the right to enter or use your property, typically in a specific way.

There are several types of easements, including right of way. Another type of easement is an easement in gross. We’ll cover how they work and what you need to know about them as a homeowner.

What is an easement in gross?

Easements can affect your property because they give someone other than the property owner the right to use or access a piece of property. Easements can either be attached to the specific property that is being accessed or to a person who has the right to access the property.

Easements in gross are attached to a person/company, giving them a typical irrevocable right to access a property for a specific, stated purpose. Usually, the purpose of access is quite narrow.

For example, a power utility may be granted an easement to enter one corner of your yard to access some equipment or power lines. Utility easements are among the most common types of easements in gross.

These types of easements cannot be sold or transferred. If the easement holder dies or the company holding the easement closes, the easement ceases to exist.

Other types of easements

Easements in gross are just one form of easement. There are other types of easements that can have different characteristics and are used in different scenarios.

• Easement appurtenant: This type of easement attaches to the land, typically between two adjoining pieces of property.
• Prescriptive easement: This type of easement doesn’t have a written agreement. Instead, it’s granted after the open, notorious, adverse, and continuous use of another’s property for a period that varies from jurisdiction to jurisdiction.
• Easement by necessity: This type of easement usually happens when a property is landlocked and one owner needs to use another owner’s land to exit their own property.

Example of easement in gross

Easements in gross usually don’t just exist automatically. They need to be granted by a property owner, who is often compensated for granting the easement. Consider this example:

A lakefront property owner has a neighbor across the street who would like to negotiate an easement to gain access to the lake. The owner sees the opportunity to produce some income but doesn’t want to encumber their land going forward, fearing it will affect its resale value.

As a happy compromise, the owner might be interested in selling an easement in gross to the neighbor. This allows the neighbor to have access to the lake without permanently encumbering the property with the easement, which could reduce its value.

Negotiations

The first step in setting up an easement in gross is to sit down and negotiate with the person who wants to buy the easement. Just agreeing isn’t enough. You should work out the details and, importantly, write them down because an easement impacts your property rights.

Think carefully about all of the topics to cover in negotiations. In the above example, the property owner may want to discuss the following:

• How will the neighbor access the lake? Is there a specific path that the owner wants their neighbor to use to keep them from walking all over the yard or accessing other parts of the property?
• When is access allowed? Does the owner want to limit access to only summer months or only during daytime hours so that the neighbor isn’t walking on their property at night or in the winter?
• Are there limits to the frequency of access? Limiting the neighbor to only using the easement a few times a week can spare the homeowner from dealing with frequent incursions on their property.
• What is the price of the easement? How much will the owner charge for the easement, and will the payment be a single upfront cost, an annual fee, or something else?

The negotiations need not be adversarial. You can work with the person wanting an easement to come to an agreement that you both like. Once you’ve hammered out the details, sign a contract, and the agreement will become legally binding.

Termination

An easement in gross will last until it is terminated. How termination occurs will depend on the details of the contract you sign.

For example, you might place a time limit in the contract describing the easement, stating that it lasts for five years and then expires. This can be good if you think you may want to renegotiate details of the easement.

You could also add a clause that the easement only applies until the easement owner moves away. In the above example, it would be reasonable to cancel the easement if the neighbor moves away.

The easement can also be terminated by mutual agreement of the parties involved.

Finally, remember that easements in gross are attached to a person or business, so if the easement holder dies, the easement is terminated.

The bottom line: Easements in gross can act as a compromise

An easement in gross is one way for a non-property owner to get access to someone else’s property for a specific purpose. If you have a neighbor or someone else who could benefit from using your land but you don’t want to sell your home or give them unrestricted access, an easement in gross can be a good compromise and will not permanently encumber your property, helping preserve its value.

If you’re thinking of buying a home, you can reach out to Rocket Mortgage^® to see what you qualify for.