Easements, Licenses and Encroachments

Understanding Easements: Appurtenant vs. In Gross

In real estate practice, understanding private property rights involves recognizing when other parties hold legitimate rights to use land they do not own. An easement is a nonpossessory property right that grants someone the legal right to use another person's land for a specified purpose. Because the holder of an easement possesses only a right of use, they do not hold legal title or possession of the physical land. However, for the owner of the property subjected to that right, the easement creates an encumbrance on the servient property's title that affects how the property can be enjoyed and marketed.

Easements are generally categorized into two main types: easements appurtenant and easements in gross. An easement appurtenant involves at least two separate parcels of real property under different ownership. The parcel of land that benefits from an easement appurtenant is called the dominant tenement, while the parcel burdened by the easement is known as the servient tenement. For example, if a parcel lacks access and holds a deeded right to cross a neighboring parcel to reach a public road, the parcel utilizing the driveway is the dominant tenement, and the parcel crossed is the servient tenement. Although the easement must benefit the dominant parcel, the dominant and servient parcels need not be adjacent. An easement appurtenant generally transfers with the dominant estate and continues to burden the servient estate; whether an unrecorded easement binds a subsequent owner depends on notice and state recording law.

In contrast, an easement in gross attaches to an individual person or legal entity rather than to a parcel of land. Because this right belongs directly to a person or company, an easement in gross involves a servient tenement but has no dominant tenement. Easements in gross are divided into personal and commercial types. A personal easement in gross benefits a specific individual; it generally terminates upon the holder's death and cannot typically be assigned, sold, or transferred to another party. Conversely, a commercial easement in gross is generally transferable, subject to its specific terms and state law. Utility and pipeline easements are common commercial easements in gross; a railroad right-of-way may also be an easement in gross, but its legal character depends on the instrument creating it.