What is an easement appurtenant, in real estate?

In real estate, an easement in appurtenant can impact property ownership. That’s why it is essential to understand, especially when buying or selling parcels of land. Keep in mind that knowing if a property is in an easement agreement will help property owners understand their rights and responsibilities related to the easement.

 After all, every homebuyer wants to buy a property that’s free of any encumbrances, disputes, property tax liens, or easement appurtenances, right? Why should your ownership rights be limited? So, let’s understand the legal concept in detail, below. 

What is easement appurtenant?

An easement in appurtenant is a type of easement that benefits one piece of land (known as the dominant estate) by granting it certain rights over another piece of land (known as the servient estate). This type of easement is tied to the land itself rather than to the individual property owner. That is to say, this easement runs with the land and is transferred with the property when it is sold.

You can say easement appurtenants are like special permissions that let people, companies, or the government use someone else’s land for specific reasons. An easement appurtenant example would be if a homeowner needs access to a road but can only reach it by passing through a neighbor’s land, an easement in appurtenant may be established, allowing them to cross that piece of land legally. 

What’s special about an easement appurtenant is that it’s connected to the parcel of land itself, not just the owner. If the land where the easement is located gets sold, the new owner still has to let the person with the easement use it. Similarly, if the person with the easement sells their land, the new owner gets the right to use the easement.

Real estate professionals often advise property owners to seek legal counsel when drafting or reviewing easement agreements to ensure all legal obligations are met and that the easement serves its intended purpose.

What are the key features defining easement in appurtenant?

• It is inherently tied to the land, not to the individual owner. As a result, when the dominant estate is sold, the easement automatically transfers to the new property owner.
• With an easement in appurtenant, two properties are involved. The dominant estate is the property that benefits from the easement, while the servient estate is the land burdened by the easement. These roles remain consistent over time, as they are tied to the physical land rather than to ownership.
• The dominant estate gains access, use, or other benefits as stipulated in the easement, while the servient estate must accommodate these rights. This can include rights to access, utility installation, or other specific needs outlined in the easement agreement.

Explaining easement appurtenant through examples

Some common types of easement appurtenant include:

Driveway easement: A property owner may have an easement appurtenant that allows them to use a neighboring property’s driveway to access their own property.

Utility easement: Utility companies often have easements allowing them to access, install, and maintain power, gas, sewer, or water lines.

Access easement: In cases where a piece of property is landlocked and has no direct access to a public road, an easement of necessity or implied easement can grant the owner the right to cross another property to reach the road.

View easement: This preserves someone’s view by preventing the owner of another property from building something that would block it.

Conservation easement: It restricts certain uses of the land to protect natural resources such as forests or wetlands.

Beach access easement: It allows people to use a portion of a beach on someone’s property to reach the water.

Read more: How much does an easement devalue a property?

Are easements binding?

Easements are typically conveyed through written agreements or a court order. They are often recorded in public records to provide notice to future property owners. These agreements define the scope of the easement, its location, and any limitations or conditions. 

They are also subject to local property laws and regulations. Disputes over easements can sometimes lead to legal actions. Therefore, property owners need to understand their rights and responsibilities regarding easements on their land. That’s why, it’s important to consult a real estate attorney when establishing or modifying easements appurtenant.

Read more: What does convey mean in real estate?

How do property owners establish easements?

Property owners can establish easements through various legal processes depending on the nature of the easement, local laws, and the agreement between the parties involved. 

Here are some common ways property owners can establish easements:

Written easement agreements

Easements in appurtenants are typically created through an express grant, which involves a written easement agreement between property owners. When created through this formal process, they are known as express easements, since they are explicitly stated in legal documents. These agreements are typically recorded in public records to provide notice to future property owners.

The easement agreement should clearly outline:

• The specific purpose of the easement (such as access or utility installation)
• The location and boundaries of the easement
• Conditions or restrictions related to its use
• Rights and obligations of both property owners

A well-drafted easement agreement protects both the dominant and servient estates by detailing rights and limitations, helping prevent potential disputes.

Voluntary agreement

The property owner who needs the easement (the owner of the dominant estate) can approach the owner of the property over which the easement is needed (the owner of the servient estate). They can then negotiate a voluntary agreement to define the terms and conditions of the easement, including its location, purpose, and any compensation. 

Prescription

In some cases, an easement exists through adverse possession or prescription. For example, when someone openly and continuously uses another person’s land without permission for a specific period. If the legal requirements for adverse possession are met, a court may grant a prescriptive easement as a remedy.

Necessity

Easements by necessity are typically created when a landlocked property needs access to a public road. If there is no other reasonable way to access the property, a court may grant an easement by necessity to allow access.

Eminent domain

In some cases, the government can acquire an easement over private property through eminent domain. It allows the government to take the property for public use, provided that they provide just compensation to the property owner (by the Fifth Amendment of the U.S. Constitution).

Court order

If there is a dispute between property owners regarding the need for an easement, a court can order the creation of an easement after considering the circumstances and the rights of the parties involved.

Read more:  What is a lis pendens in real estate?

Easement appurtenant vs. easement in gross: What is the difference?

With easements appurtenant, it’s the landowners who hold the right to use the land. For example, your neighbor may have this right. But with easements in gross, it’s not about landowners; it’s about specific people, such as utility workers. Also, easements appurtenant are tied to the piece of land and move with the property deed. Easements in gross can’t be actively transferred by the landowner.

Last thoughts

An easement in appurtenant is a powerful legal tool that ensures one property can benefit from another, making it a vital consideration in real estate. Since this type of easement is inherently tied to the land, it affects property value and usability. Whether you’re a property owner, real estate investor, or potential homebuyer, understanding how easements work will help you make informed decisions about property use and rights. If you’re thinking about buying a property with an easement, make sure to check if it’s appurtenant. If it is, it won’t go away when you become the owner, and you’ll have to follow its rules.

Read more: Avigation easement

Written by Ramona Sinha. September 23, 2023

Ramona is the Senior Content Writer for Kukun. This experienced blogger uses simple and succinct words to decipher the complex phenomenon called life. She has written articles covering a broad range of topics, such as real estate, lending and mortgage, finance, business, taxation, home designs, home improvement projects, decor concepts, and more. An avid traveler, she’s a digital nomad at heart and an animal lover from the depth of her soul.