What Is an Easement in Gross?
An easement is a legal right allowing one party to use another party’s real property for a specific purpose. An easement in gross (also called a personal easement) is an easement that benefits a person or entity rather than a parcel of land. It grants use or access rights to the named holder, not to the owner of any adjoining property.
Key characteristics
– Benefits a person or organization (the easement holder), not a neighboring parcel.
– Often limited in scope and duration; terms are set by agreement.
– Typically non-transferable (personal), though commercial easements in gross—like utility easements—are often assignable.
– May or may not “run with the land”; many personal easements end when the easement holder dies or when the servient property is sold (exceptions exist).
– Common examples: utility corridors, rights to place and maintain poles or pipes, and conservation easements held by land trusts.
Understanding an Easement in Gross
– Holder vs. Servient Estate: The holder (person or entity) has the right to use the servient estate (the property burdened by the easement). There is no dominant estate (no neighboring property benefits).
– Creation: By negotiated written agreement and recording (deed, easement instrument), by dedication, or by statute/municipal regulation. Payment or compensation is often part of the deal.
– Types: Personal easements (non-assignable) and commercial easements in gross (assignable; common for utilities and corporations). Commercial easements are more likely to survive a sale of the servient property.
Examples
– Utility easement: A power company has the right to run and maintain overhead or underground lines across a private lot. These are typically commercial easements in gross and often continue despite sale of the servient land and can be transferred between companies.
– Conservation easement: A land trust or government holds restrictions on a property to protect open space, habitat, or scenic values. Conservation easements are usually easements in gross (they benefit the public interest and not an adjoining parcel).
Easement in Gross vs. Easement Appurtenant
– Easement in gross: Benefits an individual/entity. Not attached to another parcel. Generally ends with the holder or may be non-transferable (except for commercial variants).
– Easement appurtenant: Benefits a neighboring parcel (dominant estate) and burdens another parcel (servient estate). It “runs with the land,” so when the dominant property is sold, the easement transfers to the new owner.
Who is the holder of an easement in gross?
– Individuals, corporations, utility companies, government agencies, or nonprofit organizations (e.g., land trusts). The holder is the beneficiary named in the easement instrument.
How can I terminate an easement?
Common legal ways an easement can end (brief explanation):
1. Release: The holder signs a written release relinquishing the easement.
2. Abandonment: The holder demonstrates intent to abandon the easement (nonuse plus conduct showing abandonment). Mere nonuse alone may not suffice.
3. Merger: The servient and benefited estates become owned by the same person; the easement is extinguished.
4. End of necessity: An easement created by necessity ends when the necessity ends.
5. Condemnation (eminent domain): Government taking of the servient estate may extinguish or alter the easement.
6. Adverse possession (prescriptive rights): Long, exclusive use by the servient owner in some jurisdictions may extinguish an easement.
7. Expiration/Term: The easement ends if it was granted for a fixed time or condition that occurs.
8. Court order/demolition: If the subject of the easement is removed or the easement is judicially terminated.
Practical note: The exact rules and required proof vary by jurisdiction—consult counsel for contested terminations.
What is a conservation easement?
– A voluntary legal agreement that permanently (or for a specified period) limits uses of land to protect its conservation values.
– Usually held by a government agency or qualified land trust.
– Considered an easement in gross because the restriction benefits the public/conservation holder rather than a neighboring parcel.
– Conservation easements often carry tax implications and sometimes provide compensation or tax benefits to the property owner.
Warning / Practical risks
– Encumbrance on value: Easements can reduce property value or limit use; sellers may be required to disclose them.
– Undisclosed easements: A buyer who discovers an undisclosed easement that lowers value may have legal claims; title insurance issues can be complex.
– Transferability: Assuming the right to use continues after sale can be risky—confirm whether a given easement is appurtenant or in gross and whether it’s assignable.
Practical steps — For property owners (granting or dealing with an existing easement)
1. Read the recorded deed and title documents to identify any recorded easements.
2. Get a current ALTA/land survey to map easement locations and dimensions.
3. If negotiating an easement: a) Define scope (where, what, maintenance, hours, limits), b) Specify duration and whether assignable, c) Require compensation and indemnities, d) Address restoration/repair responsibilities, e) Require insurance and access protocols.
4. Record the easement instrument with the county recorder to provide public notice.
5. Retain counsel experienced in land use/title matters; consider title insurance endorsements to address the easement.
6. If you want to terminate an easement: attempt negotiation for a release/buyout first; if not possible, consult an attorney about legal remedies (abandonment, merger, quiet title, or other claims relevant to your jurisdiction).
Practical steps — For buyers considering property with an easement
1. Review the title report and recorded easement documents carefully. Read the specific language: rights, limits, duration, and who is authorized.
2. Obtain a survey to locate easements. Confirm setbacks and buildable areas.
3. Ask seller and title company for any unrecorded easements or agreements.
4. Consider how the easement affects intended uses (building, pools, landscaping, wells, septic).
5. If the easement is vague, negotiate clearer terms or seek a modification in writing.
6. Talk to a real estate attorney and your title insurer about contesting or insuring against undisclosed or problematic easements.
7. For conservation easements, review the conservation plan, permitted uses, and whether any stewardship or monitoring obligations exist.
Negotiation and drafting tips
– Be precise: describe location (survey-based), permitted uses, hours/access, maintenance duties, and cost allocation.
– Address liability and insurance: require indemnity and adequate insurance from the holder.
– Assignability: explicitly state whether the easement may be transferred or assigned (important for utilities).
– Modification/termination: include clear procedures for amendment and a process for voluntary release or buyout.
– Recording: ensure the instrument will be recorded to bind future owners.
When to get legal help
– If the easement’s language is unclear or broad.
– If the easement materially limits intended use of the property or reduces value.
– If you want to terminate an easement or are accused of violating one.
– When conservation easements, utility easements, or commercial assignments are involved.
The bottom line
An easement in gross gives a person or entity a right to use someone else’s land but does not benefit a neighboring parcel. Its consequences for property value and use can be significant; whether it survives sale or can be assigned depends on the easement’s nature (personal vs. commercial), the instrument’s language, and state law. Buyers and sellers should thoroughly review title records, surveys, and easement documents and consult experienced counsel to protect their interests.
Sources
– Investopedia. “Easement in Gross.” https://www.investopedia.com/terms/e/easement-in-gross.asp
– Rocket Mortgage. “What Are Easements, and How Might Having One Affect My Property?”; “Utility Easements, Explained”; “Easement Appurtenant: What It Means and How It Works.”
– Nolo. “Property Easements: Overview.”
– Vermont Attorneys Title Corporation. “5.2 Easement in Gross.”
– ALB Law Firm. “Setting the Law Straight on Terminating Easements.”
– New York State Department of Environmental Conservation. “Conservation Easements.”
– Wolff Law Office. “Claims Under a Title Insurance Policy in California for Damages Caused by an Undisclosed or Unexcepted Covenant or Easement Which Clouds Title.”
If you want, I can:
– Review and summarize a specific easement clause you have and note key risks, or
– Provide a checklist and sample language for negotiating or drafting an easement agreement.