An easement is a legally enforceable right to use someone else’s land for a set amount of time in real estate. There are three main sorts of easements in real estate law: appurtenant easements, personal easements in gross, and commercial easements in gross. In this article, we will discuss easements in gross and how they can affect the purchase of a property.
What is an Easement in Gross?
An easement in gross is one that ties a specific right to a person or entity rather than to the property itself. An easement in gross differs from a regular easement because most easements run with the property, not a particular party.
An easement in gross is commonly thought to be irrevocable for the duration of the individual’s life; however, it can be nullified if the individual sells the property on which the easement was granted.
The person who receives the easement in its entirety cannot transfer the accompanying rights to anyone else. The current easement in gross is regarded as void if the property is transferred to another owner through sale, inheritance, or any other process. A new property owner can try to obtain an agreement on a new easement in gross, but there is no certainty that the right will be granted.
How Does an Easement in Gross Work?
As addressed above, an easement in gross can be held by either a person or a business. If your family owns land that borders a highway and a local dairy farm wants to access the road by cutting through your land, your family could sell the dairy farm a commercial easement in gross.
If your family sells the land to a new owner, the new owner is not obligated to continue honoring the dairy farms’ easement. An easement in gross sale is essentially a sale of land rights to a third party without transferring legal ownership.
Examples of Easement in Gross
Let’s look at a few examples.
A homeowner may have a gross easement with a neighbor, allowing them to access their property by a path through the neighbor’s land. The rights granted under the easement in gross cannot be immediately conveyed to the next property owner if the homeowner sells the land.
To be granted the accompanying rights, the party gave authorization by the property owner through an easement in gross does not have to own or reside in an adjacent property. Additionally, the easement’s permissions might be as broad or specific as required. When it comes to easements in general, the property owner frequently has the most control over the restrictions imposed by the easement.
Here’s another example.
Let’s say, Mr. Jones owns a piece of land with an excellent fishing spot. Mr. Smith, a local fisherman, may be granted an easement in gross by Mr. Jones, allowing him to use the fishing hole. The easement expires if Mr. Jones sells the property or if Mr. Smith dies or moves away.
In plain terms, easements in gross attach to the person, not the property. You don’t have to be a neighbor to get an easement with broad or specific permissions because they tie to a person in general.
Property owners are not the only parties that benefit from the use of easements. Utility companies, such as water or electric companies, may use easements to gain access to the cables or piping that support the services they provide.
Suppose a utility company has an easement to install the necessary cabling. In that case, the property owner may not be able to build specific structures in the area covered by the agreement. This can include prohibiting the construction of a swimming pool, a road, or any other permanent facility that might obstruct the company’s access to the specified area.
Some common easements, particularly those granted to utility companies, contain significant interest and can be assigned to third parties in the future. Suppose a piece of natural land is purchased without the seller disclosing the existence of an easement. In that case, the buyer may pursue legal action if the easement lowers the property’s value.
Is an Easement in Gross Appurtenant?
No. Appurtenant easements are connected to the land, not the party that occupies it. Remember, the term appurtenant is an adjective meaning it is attached to something. If something is appurtenant, it belongs to something else, either attached to or by law. An appurtenant easement is a type of easement that “runs with the land.” Unlike gross easements, appurtenant easements are attached to the land and transferred with the deed.
With appurtenant easements, if the servient estate is sold, the new owner must enable the dominant estate’s owner to keep using the land. Similarly, the easement will be transferred to the new owner if the dominant estate is sold.
In short, the main difference is that the users of an easement in gross aren’t estates; instead, they’re persons like utility businesses, services, or just owners.
How are Easements in Gross Terminated?
Generally speaking, if you wish to get rid of a regular easement, you will almost always have to involve the courts. Property owners typically have to go to court and file a civil lawsuit. There are specific workarounds, such as removing the problem or working something out with your neighbor, but it’s always preferable to see a lawyer first.
An easement in gross, however, can be terminated in a few different ways.
The first and easiest way is to wait out the issue. An easement in gross will cease to exist when the property is transferred from the legal owner to a new owner. Since by definition, the easement exists with the individual, not the estate or property itself. Obviously, the same goes if the property owner dies or the easement holder’s property is alienated for any reason, such as foreclosure.
What to Know for the Real Estate Exam
When it comes time for your real estate exam, you need to understand easements and the different types. An easement in gross is one that ties a specific right to a person or entity rather than to the property itself. An easement in gross differs from a regular easement because most easements run with the property, not a particular party. If you are unsure of a situation with an easement holder, contact an attorney specializing in easements to help you further. If you keep these things in mind, you will be set come exam day!
For more on easements check out our real estate license exam question series: