Introduction to Easements

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An easement is an interest in land that allows its holder to make or prevent use of property that is legally possessed or owned by another person. Easements can be either affirmative or negative. The owner of an affirmative easement in property is entitled to make use of the property to whatever extent the easement allows him or her to do so. The owner of a negative easement is able to prevent the owner or possessor of the property from using the land in a manner that is described by the terms of the easement. In other words, an easement is a right to use another person’s land for a limited purpose or to prevent the use of that land for a specific purpose. For example:

1. Dennis and Mr. Wilson are neighbors. The driveway in front of Dennis’ house leads to Maple Avenue. However, Dennis would also like to be able to cut through Mr. Wilson’s house to access Main Street by foot. He and Mr. Wilson therefore make a deal under which Dennis will pay Mr. Wilson a one time fee of $10,000 and Mr. Wilson will grant Dennis the right to use Mr. Wilson’s property to access Main Street by walking within the path outlined in red:

Although Mr. Wilson still owns and possesses his property, Dennis owns an “easement” in the property of Mr. Wilson, because he owns the right to use it for a specified purpose. Keep in mind that Dennis’ right to use the property is limited to the terms of the easement. If Dennis walks outside the red path area, in violation of the terms of the easement, Mr. Wilson would have an action against him for trespass.

2. Dennis and Mr. Wilson are neighbors. Dennis and his friends have formed a rock band known as “The Backyard Band.” Unfortunately, their practices are loud and the loud music drives Mr. Wilson crazy. Mr. Wilson offers Dennis $20,000 if Dennis grants him the right to prevent rock music from being played loudly on Dennis’ property. Dennis accepts. In this case, Mr. Wilson owns a negative easement in Dennis’ property. That is, Dennis still owns and possesses the property, but Mr. Wilson has the right to prevent certain uses of that property, in this case, the playing of loud music on the property.

Easements, whether affirmative or negative, are divided into two categories:

Easement Appurtenant
An easement appurtenant is an easement that is held by a person in his or her capacity as the owner of land that is being benefited by the easement. In other words, an easement appurtenant benefits another land and the owner of that land, not simply another person.

The above examples of the easements between Dennis and Mr. Wilson are easements appurtenant because both examples illustrate cases in which the easement holder sought the easements because of the proximity of   the position of the land in which the easement was being sought to the land that was owned by the seeker of the easement. Put another way, Dennis sought the right to walk through Mr. Wilson’s property because that made it more convenient for him to live on and commute from his own land. Mr. Wilson sought the easement to make life on his own land more pleasant by eliminating an annoyance that was coming from an adjacent land.

In every easement appurtenant, there are two parcels of land that are involved. The “dominant tenement" is the land owned by the holder of the easement. In the first case above, Dennis’ property is the dominant tenement because it is Dennis, in his status as owner of his property that sought and holds the easement. The other parcel of land is the land in which the easement is held. This parcel of land is called the “servient tenement.” In the same case, of course, Mr. Wilson’s property is the servient tenement. The dominant tenement and the servient tenement are usually adjacent to each other, although this is not a requirement for an easement appurtenant.

The key feature of the easement appurtenant is that the easement is considered to be held by the owner in his or her capacity as owner of the dominant tenement. Therefore, if the dominant tenement is sold or transferred, the easement will automatically be transferred along with the land to the party to which the dominant tenement is being transferred.

In the above example:

Dennis holds an easement appurtenant that allows him to cross over Mr. Wilson’s property on the path outlined in red, to access Main Street. Dennis later sells his property to Sue. The easement gets transferred along with the property to Sue. Sue now has the same right to cross Mr. Wilson’s property as did Dennis when he lived there. Dennis’ right to walk on that path, on the other hand, is extinguished because he no longer owns the dominant tenement.

Easement in Gross
The easement in gross is the counterpart to the easement appurtenant. An easement in gross is owned by a person in his or her private capacity and not in his or her capacity as owner of any particular parcel of property.   Essentially, any easement that is not an easement appurtenant is an easement in gross. For example:

Mike lives in Nirvana. He enjoys taking his boat out for some quiet relaxation time on Nirvana Bay. His boat is stored in a boatyard that is near Nirvana Beach, from where he can launch his boat. However, the access to Nirvana Beach from the location in which Mike’s boat is stored is blocked by the property of Miser. Miser stubbornly refuses to allow anyone to walk over his property.  

So, Mike makes a deal with Miser. The terms of the deal are that Mike is to pay Miser $5,000 in return for Miser’s granting Mike the right to carry his boat across Miser’s property to access Nirvana Beach. In this case, Mike has an easement in gross because the easement does not relate to Mike’s ownership of a specific piece of property. The easement is personal to Mike.

Since there is no property that is the dominant tenement, Mike will never lose this easement unless he sells it, or it terminates for any of the reasons discussed later in this chapter.

Unless otherwise agreed to by the parties, easements in gross are generally not transferable and therefore, they cannot be sold from party to party. If the holder of an easement in gross dies, the easement will be extinguished. The exception to this rule is where the easement is granted for a commercial purpose. An easement that is bought to carry out a commercial purpose can usually be resold. However, even in such cases, the transferee must be careful not to exceed the scope of the usage permitted by the easement in the first place. For example:

Microsoft buys an easement from Farmer Joe that allows it to put up a billboard on a section of Farmer Joe’s property that runs along the side of State Route 7. A few months later, Microsoft executives decide that, since they have a monopoly in any case, there is no need to advertise any more. Microsoft can sell its easement to another company. That company will then step into Microsoft’s shoes and they can put up their own billboard in the same place.

One thing that is common to easements in gross and easements appurtenant is that they both survive the transfer of the servient tenement to a third party. In other words, if the owner of the servient tenement sells or transfers that property, the new owner of the property is still bound by the terms of the easement. However, an easement in gross could be extinguished if the land is transferred to a party who had no notice of the existence of the easement and no reason to know of the existence of the easement.

In the first example in the subchapter, if Mr. Wilson were to sell his house to Mr. Burns, Dennis would still have the right to cross over the property to access Main Street.

Because an easement appurtenant “runs with the land” (it is automatically transferred to whoever owns the land), while an easement in gross does not, it is important to be able to distinguish between the two types of easements. Usually, it is easy to tell what type of easement is conveyed. If the easement benefits the use of a parcel of land, it will be an easement appurtenant. Otherwise, it will be an easement in gross. If it is not clear which type of easement is being created, courts will assume the creation of an easement appurtenant. See Martin v. Music, 254 S.W. 2D 701 (Ky. 1953).

Finally, it is important to note that an easement is an interest in real property. Therefore, the granting or transferring of an easement, where permissible, must be done by a writing to satisfy the Statute of Frauds if the interest transferred by the easement is to last for more than one year. Of course, if the easement is to last for one year or less, the Statute of Frauds does not apply to it, as we previously discussed in the context of leaseholds.

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