What is an Appurtenant Easement?
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Summary:
An easement appurtenant is a certain type of easement that is permanently attached to the land. In property law, an easement appurtenant differs from an easement in gross, in that the users of an easement in gross are given the right to use or access a property for a defined purpose, but there is no legal attachment to the land itself.
When you’re buying a piece of real estate, you probably realize that it’s smart to know where your property lines are — where your land ends and the neighbor’s begins. What’s a little trickier to figure out is if your neighbor has any rights to your land or if you have any rights to your neighbor’s property. These rights are known as easements appurtenant.
If you discover that there are some property rights between you and your neighbor’s property, it’s important to know what they are and what it means for your homeownership rights. Read on to learn more about easements appurtenant and how they affect the use of your land with an adjoining property.
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What is an easement appurtenant?
In real estate law, easements fall into two general categories: easements appurtenant and easements in gross. An easement appurtenant is defined as the right of one property owner to use the property of another for a specific purpose. In addition, it’s an easement that is tied to the land in perpetuity, meaning that the easement still applies even when either property is sold to a new owner.
An appurtenant easement exists between two properties — the servient tenement and the dominant tenement. The servient tenement (or servient estate) is the property that provides the easement. On the other hand, the dominant tenement (or dominant estate) is the property that uses or benefits from the easement.
For example, let’s say that property owner A owns a parcel of land that property owner B needs to build a driveway to access the main road. In this case, owner A would be the servient estate and owner B would be the dominant estate.
Before you purchase a home, make sure you check to see whether your land has any appurtenant easements. If you’ve already performed a title search, your next step is to get the right mortgage for your future home.
Urban easement appurtenant
A more urban illustration is one that Jonharold Cicero, Partner and Real Estate Attorney at DL Partners, often deals with in New York City: A building that has a commercial unit on the street level and residential units on the upper floors. In that case, the commercial property owner would be granted an easement appurtenant to keep some mechanical equipment, like an air conditioning unit, on the roof of the residential units.
“In this situation, the restaurant/retail unit becomes the dominant estate party, while the residential portion of the building becomes the servient party. The retail unit is responsible for the repair, maintenance, and replacement of its equipment and all associated costs, but also maintains an easement to bring their workers through the building to access such items,” says Cicero.
These kinds of appurtenant easements will remain in place even when either property changes ownership because the easements are still needed by subsequent owners.
Pro Tip
You may hear real estate professionals refer to it as an easement that “runs with the land.” This simply means the easement is part of the deed and sold as part of the property.
How is an easement appurtenant created?
There are several ways that easements appurtenant can be created: by express grant, implied, by necessity, or prescriptive. Their meanings vary a bit, but they all involve a dominant estate and a servient estate. The easement runs with the land giving a lifetime legal property right to current and future owners.
1. Express easements
An express easement is usually created with a written legal document between the two landowners or a court order. This is one of the most common kinds of easement and it’s usually given freely or sold to the neighboring property.
For instance, an express easement might allow a neighbor to cross your property to reach a public park or beach.
2. Implied easements
An implied easement appurtenant doesn’t need to be written down because it’s understood (implied) that the easement is needed because of the way that the land is configured.
One example of an implied easement is a right of way to access the main road.
One example of an implied easement is a right of way to access the main road.
3. Easement of necessity
An easement of necessity is similar to an implied easement, but it’s usually because an easement becomes necessary. For instance, an easement of necessity may be needed if a parcel of land is subdivided in such a way that one or more person’s property becomes landlocked by the property division.
4. Prescriptive easements
The requirements for a prescriptive easement vary by state. However, in general, if an individual habitually and blatantly uses someone else’s land, they may be able to gain a prescriptive easement, even if the property owner decides to object to the usage.
For example, if a neighboring property owner has been using a hiking or snowmobile trail for years that crosses your property, they may be granted a prescriptive easement. This will give the dominant estate legal rights to that specific land use of your property, and it will apply to subsequent owners as well. If you become the new owner of that property, you’ll also be burdened by the easement appurtenant.
Easement appurtenant vs. easement in gross
By contrast, an easement in gross is a personal easement between two parties that doesn’t involve giving property rights to a dominant property over the neighbor’s property (the servient estate). With an easement in gross, the property owner gives a right of specific use to an individual or company, but not rights to the property itself.
For example, utility companies would be able to obtain an easement in gross if they need to access utility equipment located on your property. And the easement in gross is usually not transferable when the property has a new owner, although there are a few exceptions.
Easement in gross examples
Aside from an easement appurtenant, here are some other common real estate easements you might come across that are not tied to the land.
- Utility easement. As mentioned previously, utility easements are very common and grant utility companies the right to come onto your property to repair, maintain, replace, or upgrade things like water and gas lines, telephone poles, and electrical components.
- Private easement. A private easement can be created by property owners for almost any reason, such as allowing a neighbor to hunt on your property, swim in your pool, or let their cattle graze on your land.
- Public easement. A public easement is meant to allow pretty much anyone to use a portion of your property for a specific purpose. For example, if there’s a hiking trail that runs through your land, you can create an easement that allows the public to benefit from it.
Pro Tip
As a potential buyer of a property, it’s important to do your due diligence (usually through a title search by a real estate lawyer or title company). This way you know whether there’s an easement appurtenant or other type of easement that affects your legal rights, real estate taxes, and land use of the property you’re planning to purchase.
FAQs
What is a conservation easement?
A conservation easement is created to protect and preserve the natural resources of a piece of land. It restricts the activities that can take place on the property and is tailored to the interests of the landowner and the particular property. It’s generally considered a negative easement because it blocks the property from certain uses rather than granting specific purposes.
What does the phrase appurtenant to the land mean?
The term appurtenant is most commonly used when defining an easement that applies to the land itself. However, in real estate, you may also hear the term “appurtenant to the land,” which basically means anything that’s permanently attached to the land.
This can include in-ground swimming pools, fences, and sheds. Anything that’s permanently affixed to the land is considered to be part of the property and therefore included in the real estate sale.
Key Takeaways
- In real estate, an easement appurtenant is a type of easement between neighboring properties that “runs with the land.” This means it remains in place even when the property owners change.
- With an easement appurtenant, there are two property owners: a servient estate that provides the easement, and a dominant estate that benefits from the easement appurtenant.
- There are four main types of easements appurtenant: express easements, implied easements, easements of necessity, and prescriptive easements.
- An easement appurtenant varies from an easement in gross. Easements in gross are one property that grants an individual or entity a personal right to use the property for a specific purpose that is not tied to the land.
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