Easement In Gross: A Definition

Purchasing a home means a brand-new set of terminology for buyers to learn. Even if you’ve bought and sold a home or two before, each new-to-you property may come with its own set of liens, regulations, restrictions and easements. Certain terms can signal big legal implications for property owners, which is why it’s important to familiarize yourself with what these terms may mean.

Below, we demystify one of the more legal-heavy terms when it comes to buying real estate: easement in gross.

In real estate, an easement is the legally enforceable right to use someone else’s land for an ongoing period of time. In real estate law, there are multiple types of easements: easements appurtenant, personal easements in gross and commercial easements in gross.

An easement in gross is a type of easement that gives a person the right to use a parcel of land owned by someone else. An easement in gross differs from the more common easement appurtenant because, while it does confer an irrevocable property right to a non-owner, it does not become part of the title and transfer owner to owner.

Think of it this way: easements in gross attach to a person, easements appurtenant attach to the land (and are most often between two adjoining pieces of property). Because easements in gross attach to a person, you don’t have to be a neighbor to receive one.

For example, say Landowner A owns a piece of property with a fantastic fishing hole. Landowner A may give the local fisherman, Mr. Brown, an easement in gross that grants him access to use the fishing hole. If Landowner A sells the land, or Mr. Brown passes on or moves away, the easement ceases to exist.

An easement in gross can be sold to either an individual (personal) or to a company (commercial). For example, if your family owns land that abuts a highway and a local dairy farm wants to access that highway by cutting through your land, your family may sell a commercial easement in gross to the dairy.

Easements are the right of the property owner, but if your family sold the land to a new owner, that new owner is not under an obligation to continue honoring the easement to the dairy company.

An easement in gross is basically selling rights to the land to another person, but without giving them legal ownership. An easement appurtenant, on the other hand, is a permanent encumbrance (legal right) to the property.

Let’s say there are two adjoining pieces of property, and the owner of Property A wants to install a driveway but needs 5 feet of the adjoining lot of Property B. The owner of Property B grants the easement for a fee, but all future owners of Property A will have access to the driveway, and thus the 5 extra feet of Property B’s lot the driveway sits on creates an easement appurtenant.

So, how do neighbors live peacefully when one is using the other’s property without a legal right? Negotiated agreements.

For example, a lakefront property owner, Quinn, has a neighbor across the street, Harley, who would like to negotiate an easement to gain access to the lake. Quinn sees the opportunity to produce some income, but doesn’t want to encumber his land going forward, fearing it will affect its resale value. As a happy compromise, Quinn might be interested in selling an easement in gross to Harley. 

Consideration

First, Quinn and Harley would come to terms about when and how Harley would be able to enjoy access to the lake. Harley says he wants to use it only in the summers. Quinn agrees to let Harley’s access road cross over into his land to the boat ramp for the price of $5,000 a year for a minimum of 10 years. Harley then pays Quinn’s asking price and the contract is established.

Terminations

Unlike easements appurtenant, which run with the land, the easement in gross ends if Quinn sells the property or Harley dies.

An easement in gross could be a happy “compromise” for landowners who want to monetize their property without creating a permanent encumbrance. In the lakefront example above, the new owner of Quinn’s property may want total privacy and not allow a new owner to cross onto their property.

Educating yourself about all aspects of property law is important as there are even more nuances to easements than we’ve covered here, such as prescriptive, utility and easements of necessity. Be sure to check out the Rocket Mortgage^® Learning Center to learn more.