What is an Easement?

An easement is a legal right to use another’s land for a specific limited purpose or benefit. In other words, when someone is granted an easement, he is granted the legal right to use the property, but the legal title to the land itself remains with the owner of the land. Most commonly, easements are granted to utility companies to run power lines or cable lines (known as utility easements). However, you may also grant an easement to your neighbor if your property is in the way of his access to a road, or to anyone else who needs to have a legal right to access your private land (easement of access).

What is easement appurtenant?

Easements are classified as “appurtenant” or “in gross.”  Types of easements classified as “appurtenant” are said to “run with the land,” which means it is part of the formal ownership of the land rather than for a specified period of time. For instance, if a neighbor, Sam is granted an easement known as an easement appurtenant to move his car in and out of the neighbor’s driveway, when Sam sells his property, the new property owner becomes the easement holder and also has the limited right to continue to have access to a neighbor’s driveway. In addition, both Sam and future property owners can use the neighbor’s driveway in only the limited manner arranged between the underlying land owner and the original grantee of the easement. In this example, the neighbor, known as Joe, granted neighbor Sam an express (formally spelled out) easement with terms that provided Sam with the limited easement rights to use the driveway to move his car. Neither Sam nor future owners can use the driveway for other purposes such as playing basketball with his kids. A title search by a prospective owner of the underlying property would reveal an easement appurtenant.

What is an easement in gross?

An easement in gross is a personal easement that does not transfer with the property deed. For instance, if neighbor John grants Tom access to the public beach by crossing over John’s property when Tom sells his land, the new property owner is not legally entitled to cross John’s property. The new owner does not have an easement to get to the beach through John’s land. A title search would not show an easement in gross.

Examples of easements include:

• the use of private roads and paths
• the use of a landowner’s property to lay railroad tracks or electrical wires

If you are considering a real estate transaction that includes an easement or are considering creating an easement, it is best to get advice from a real estate attorney.

How is an easement created?

An easement may be express, or it may appear by implication or by prescription.

Read on to learn more about the creation of easements. 

Express Easement. Express easements are created by a written agreement between landowners granting or reserving an easement. Express easements must be signed by both parties and are usually recorded with the deeds to each property.

Easement by implication. An implied easement may be created only when two parcels of land were at one time treated as a single tract or owned by a common owner. Consequently, easements appurtenant may arise by implication while easements in gross may not. An easement by existing use is implied if the easement is necessary to use one parcel of land. The parties agree that the use will continue after the division of the tract. An easement by necessity is implied when one parcel of land is sold, withholding the other parcel of access to a public road or utility

Easement by prescription. A prescriptive easement or easement by prescription appears if an individual has used an easement in a certain way for a certain number of years. Usually, this type of easement will be created if the individual’s use of the property meets the following requirements:

• • The use is open and notorious
  • The individual actually uses the property
  • The use is continuous for the statutory period 
  • The use is adverse to the true owner, i.e., without the owner’s permission

You may also want to consult a real estate agent or real estate attorney if you have any other questions about easements.

Case Studies: Understanding Easements

Case Study 1: Appurtenant Easement

In a suburban neighborhood, Alice owns a property that is surrounded by other houses. However, her property lacks direct access to the main road. Her neighbor, Bob, agrees to grant Alice an appurtenant easement that allows her to use a portion of his driveway to access the main road. This easement “runs with the land,” meaning it will transfer to future owners of Alice’s property, providing them the same access rights.

Case Study 2: Easement in Gross

In a rural area, Sarah owns a large tract of land, and her property contains a natural spring that her friend, Mike, finds beneficial for water supply. Sarah grants Mike an easement in gross, allowing him personal access to the spring water. However, this easement is specific to Mike and does not transfer with the property. If Mike sells his land, the new owner will not have the right to access the spring.

Case Study 3: Easement by Prescription

John has been using a neighbor’s unpaved road to access his property for over 20 years, without any formal agreement. This consistent use creates an easement by prescription, granting John the legal right to use the road even though it’s not part of his property. The court recognizes the prescriptive easement due to the substantial duration of John’s use and the absence of objections from the neighbor.