Are you thinking about buying or selling a property? Before you do, it’s important to figure out who has the right to use the land.
It’s not always up to the owner. If there are easements on the property, someone else might have the legal right to use it, and depending on the type of easement, there might be nothing you can do about it.
If you’re considering a property that is burdened by (or benefits from) this type of easement, pay attention. It can affect how you use, develop and access your land.
We know – it sounds complicated. Let’s break down the legalese and figure out how an easement appurtenant could affect you.
What Is an Easement Appurtenant?
Let’s start with the basics: what is an easement? Put simply, it’s the legal right to use another person’s property for a specific purpose.
Courts and property owners grant easements for a few common reasons. To allow:
- Landlocked property owners to access the nearest road
- Utility companies to run power or gas lines
- Cities to install and maintain a sewer system
- The government to build roads
Now, let’s look at the appurtenance definition. When something is appurtenant to a property, it means it stays with the land when it’s sold. An appurtenance in real estate is often a tangible item, like a barn or an in-ground pool.
An easement appurtenant combines these two concepts – it’s an easement that belongs to a property, even when it changes owners. You might also hear real estate agents refer to it as an easement that “runs with the land.”
Imagine that you’ve found a gorgeous piece of land, but there’s one big catch – the only way to get to it from the road is to cross over the neighbor’s property.
Before you can build a driveway, you’d need to get an easement appurtenant. That way, you’ll be able to access your land, even if the neighbor sells.
Every easement appurtenant involves two properties:
- Servient tenement (or servient estate): The property that’s subject to an easement.
- Dominant tenement (or dominant estate): The property that benefits from the easement.
In the example above, the neighbor’s property is the servient tenement – it has the easement. Your property is the dominant tenement because you benefit from the easement.
How Is an Easement Appurtenant Created?
There are a few ways to create an easement appurtenant, depending on the situation and state law.
An express easement is the most straightforward and common option. It’s an easement that’s written down (expressed).
If you want to hike through your neighbor’s property to get to a public park, you could ask for an easement appurtenant.
When the neighbor agrees, they’d draw up an easement deed – a legal document that explains where, when and how you can use the land. You’d both sign and the easement would become part of the neighbor’s property.
An easement can also be added to a will.
By putting the agreement in writing, this type of easement protects your rights and ensures that the current and future neighbors can’t take them away.
Unlike an express easement, an implied easement is not written down. That’s usually because there’s no need to do so – the need for an easement is apparent. Implied easements benefit the owner of the dominant estate.
These easements often happen when a large piece of land is divided into smaller lots. Each state uses its own criteria, but there are two common requirements for an implied easement:
- The easement is reasonably required for you to enjoy your property.
- Previous owners have enjoyed the usage rights you want (prior use).
Let’s say a landowner decides to sell you 10 acres of a 40-acre lot. Your property has a pond that’s surrounded by thick forest. Before splitting the property, your neighbor built an ATV trail and used it to get to the pond; part of the trail runs through their land.
In this case, you’d have an implied easement for the ATV trail. You need it to enjoy the property to the fullest, and it matches the prior use of the trail.
Easement of necessity
An easement of necessity is similar to an implied easement, with one key difference: it’s an absolute necessity.
In the scenario with the pond and ATV trail, you probably wouldn’t get an easement of necessity – after all, you could technically build another road to the pond.
Let’s say your 10-acre lot is landlocked in the middle of the neighbor’s property. To access your land, you’d need to build a driveway – you have no other options. The neighbor would be required to grant an easement of necessity.
A prescriptive easement happens when someone openly trespasses on your land regularly and continuously over a period of years. If you don’t take action in time, they could get a court to grant an easement.
Every state has its own rules about prescriptive easements. In most cases, the main variable is the amount of time before the neighbor can request the easement – aka the statutory period.
Imagine that you have a property in Michigan with a state forest on one side and another private property on the other. Your neighbor builds a trail through your property to the state forest, not realizing it’s on your land. They use the trail every weekend.
After 16 years, you discover the trail and put up a fence. However, since Michigan has a statutory period of 15 years, the neighbor can take you to court to get a prescriptive easement that allows them to keep using the trail.
Prescriptive easements can make it hard to sell your property. Since they’re appurtenant, the new owner will have to put up with the usage.
The easiest way to prevent these hostile easements is to know where the property lines are and monitor activity. If you notice that a neighbor is using the land, grant them permission – it prevents them from getting an easement later.
An Easement Appurtenant vs. An Easement in Gross
Easements appurtenant and easements in gross both allow a non-owner to use a piece of land for a specific purpose.
While an easement appurtenant involves two adjacent pieces of property, an easement in gross is an agreement between people – a property owner grants it to a specific person or company. That party can’t give the rights to anyone else, and the easement doesn’t automatically transfer with the land.
You might grant an easement in gross to a logging company that wants to use your private road. When you sell, the logging company would have to negotiate a new agreement with the new owner.
What Can the Dominant or Servient Estates Do With the Easement?
When you own the dominant property, you can release an easement appurtenant at any time by signing a legal release document. Alternatively, you could simply stop using the land. After a certain period of time, which varies by state, the easement will expire.
Are you planning to buy a dominant property? Make sure the current owner doesn’t terminate the easement before the sale.
If you own the servient estate, you can’t get rid of an easement appurtenant or interfere with the rights it gives the dominant estate. However, consider the “right to property” definition: your right to do what you will with your land.
As the owner, you’re free to give or sell the land with the easement to anyone you like.
Don’t Let the Legalese Deter You, Elle Woods
While the legal language can feel confusing, don’t let it stress you out. Often it’s enough to be aware of whether an easement exists or not. So the next time you’re scrolling through listings, be on the lookout for properties with easements appurtenant.
As long as you know how the easement affects your rights, you can go into the transaction feeling informed and in control.