Easement in Gross: What It Is and How It Works

An easement is a legal right to use someone else’s land without owning the land. Buying and selling property requires understanding easements and how they affect your rights. There are several types of easements, each with its own rights, regulations and restrictions. One type of easement to consider is an easement in gross. Here’s what it is and how it works.

Easement in gross definition

An easement in gross gives a person the right to use a parcel of land that someone else owns. It differs from the common easement because it does not become part of the title and transfers from owner to owner.

Easements in gross attach to a person or entity while other easements, such as easements appurtenant, attach to the land itself, most often between two properties next to each other. You don’t have to be a neighbor to receive easements in gross.

There are multiple types of easements, including easements appurtenant; personal easements in gross, which are not attached to another property; and commercial easements in gross, where a company buys or sells an easement.

How does an easement in gross work?

An easement in gross can be made by either an individual or a company. It is basically selling land rights to another person or entity without giving them legal ownership. For comparison, an easement appurtenant is a permanent legal right to the property.

For example, if you own land next to a highway and a local dairy farm wants to access the highway by cutting through your land, you may sell a commercial easement in gross to the dairy farm. However, easements are the right of the property owner, so a new owner is not under obligation to continue honoring the easement with the dairy company. A new easement in gross contract with the new owner is necessary because the agreement involves the individuals, not the property or land.

Similarly, a beneficiary cannot transfer the rights to any other person or company. This nontransferable characteristic defined in the contract protects the property’s value from depreciating.

Another aspect of the easement in gross is that the person permitted to use the property is not required to reside or own a nearby property to get the related rights.

The rights granted in an easement in gross contract can be broad or specific. Though rights can be ambiguous, the property owner has the most control giving rights and restrictions outlined in the easement in gross agreement.

But, the easement in gross provides privileges to other entities or persons, not property owners, while limiting the property owner’s actions related to the property in the contract.

Therefore, the property owners cannot interfere with the access of the property by the easement holder.

“The easement in gross is often considered irrevocable for the individual’s life, but it can be rendered void if they assign or sell the property the easement was based on,” said New York-based lawyer Adam Leitman Bailey of Adam Leitman Bailey P.C. “An easement in gross acts as an easement attaching a particular right for an individual or entity rather than the property itself.”

Easement in gross example

One of the most familiar examples of an easement is when a utility company or government entity wants to access your land for infrastructure purposes. Bailey said an easement in gross can even be used for the right to fish on the land.

Easements in gross allow utility companies or government entities to install and maintain infrastructure on private property, such as sustaining the supply of telephone services, electricity, television cable or natural gas.

Generally, under the easement’s conditions, the homeowner is restricted from activities that could damage the utilities. Also, the party benefiting from an easement in gross does not have to own or live on neighboring property for those rights.

Another caveat is that the rights granted in the easement may be broad or specific. The property owner often dictates the easement’s limitations.

Lastly, easements in gross can be made for the conservation of land, which limits specific rights such as removing minerals from the land and some types of development to preserve the land’s agricultural potential and natural characteristics.

Easement in gross vs. easement

Easements grant specific rights to someone other than the property owner, while easements in gross grant rights to the owner of a nearby parcel of property.

For example, an easement could allow a neighbor to cross their neighbor’s land to reach their own property.

The easement rights can also transfer to the new property owner when the land is sold. However, easements in gross generally cannot transfer outside of certain exceptions. Also, an easement may last forever unless the two property owners agree to cancel it.

Easements can be classified as “appurtenant,” which can be “run with the land,” meaning part of the formal ownership of the land. It is also the right to use the neighboring property, transferring with the land. A simple title search of the underlying property would show an easement appurtenant.

Typically, an easement in gross is created when a utility company or government agency needs to access the land without worrying about the landowner’s objections.

Some easements, especially with utility companies, carry significant interest and can be assigned to other parties. Typically, a utility company or government agency would need to access the land without worrying about any landowner objections, such as maintaining power lines that run through the rural property.

A buyer can seek legal remedies if the easement reduces the property’s value and if the seller doesn’t disclose the nature of an easement.

Terminating an easement in gross

Recently, the number of cases of terminating an easement has spiked due to being a misunderstood area in real estate law.

Terminating an easement can be complicated, but generally the simplest way to end one is to persuade the beneficiary to release or abandon their rights to the easement. This can be seen as negotiating an agreement.

However, there are a few other ways to terminate an easement.

Abandonment

Any easement can be dissolved by owner abandonment. To prove abandonment, there must be an intention to abandon the rights to the easement with some overt act or failure to act. This implies that the owner neither claims nor retains any interest in the easement.

Merger

An easement can also end by a merger. Under the merger doctrine, an easement will end when the property owner and the person who uses the land become vested in one person. In this case, one person or entity would have to own the entire plot of land.

End of necessity

Easements can end when there’s an end of necessity. Essentially, the easement ends when the property changes, such as when the owner sells part of the land.

Demolition

Similarly to the end of necessity, an easement in a building or land will end when the building or land in question is destroyed.

Recording act

An easement can be voided when the land is not properly recorded before the purchase of the encumbered property.

Condemnation

A government entity can make an easement by way of condemnation. However, a governmental agency can also end an easement by condemning the building or property.

Adverse possession

Adverse possession can also end an easement. For example, in the court case Spiegel v. Ferraro, a particular driveway was the subject of an easement, but the property owner fenced it off and armed it with guard dogs for 10 years. The appeals court found the land was now free of the easement after 10 years of fencing it in.

Release

Lastly, an easement may end by a release in writing stating that the property owner gives away all rights, including the ability to sue under the easement.

Bottom line

As a property owner, understanding your rights to access are important to avoid trespassing issues. Knowing the easement basics and the types available can help determine which one is best when you are asked for rights to access your land.