Easement in gross: Defined and explained

Purchasing a home often brings a brand-new set of terminology for buyers to learn. Even if you’ve bought and sold a home 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 explain one of the more legal-heavy terms when it comes to buying real estate: easement in gross.

What is an easement in gross?

In real estate, an easement is a 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 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.

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

Another common type of easement is a utility easement. This type of easement gives utility companies the ability to access private property to repair or maintain power lines and other important utility infrastructures.

Easements appurtenant

Easements in gross attach to a person while easements appurtenant attach to the land, typically 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.

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.

How does an easement in gross work?

An easement in gross can be sold to either an individual (personal) or to a company (commercial). For example, if your family owns land next to 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 farm.

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.

Easement in gross example:

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

For 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.

Consideration

First, both parties would come to terms about when and how the neighbor would be able to enjoy access to the lake. The neighbor says they want to use it only in the summer. The owner agrees to let the neighbor cross over into their land to the boat ramp for the price of $5,000 a year for a minimum of 10 years. The neighbor then pays the owner’s asking price and the contract is established.

Terminations

Unlike easements appurtenant, which run with the land, the easement in gross ends if the owner sells the property or the neighbor dies. Alternatively, the two parties can decide to terminate their agreement if they decide the easement is no longer beneficial or necessary.

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

An easement in gross could be a happy “compromise” for landowners who want to monetize their property without creating a permanent encumbrance. Landowners have the opportunity to negotiate an easement agreement that works for both parties involved.

Check out our Learning Center for more about the different aspects of property rights as an owner.