Easements allow the use of a piece of property by someone other than the owner without transferring ownership. An easement can either run with the land or be assigned to an individual. If the easement benefits an individual and is not tied to the land, it is known as an easement in gross. By contrast, appurtenant easements are linked to the land — when the land is sold, the easement continues with the land. This type of easement is recorded with the deed and title, whereas an easement in gross is not.
An easement in gross does not transfer with the property when it is sold, and the individual that benefits from the easement cannot transfer the easement. The easement agreement is between two individuals granting an easement on a property owned by one of the individuals. A property that carries the burden of the easement is the servient tenement.
For example, Landowner A has a pond on his property. He can grant an easement to Individual B to access the pond for fishing. Individual B does not need to own any property or live within a certain distance of Landowner A to benefit from an easement in gross.
Individual B cannot sell or share the easement. It is for her personal benefit. If Landowner A sells his property, the easement does not automatically continue. Individual B would need to approach the new owner for a new easement. Since the burden of the easement is on Landowner A’s property, it is the servient tenement.
It is essential to document an easement in gross to protect both parties. Putting the easement agreement in writing and defining the extent and duration of the easement can help avoid any future misunderstandings. Without a written contract, the individuals have nothing to fall back on if there is a dispute or disagreement.
Easements in gross and easements appurtenant are both planned easements. Permission is granted to an individual or individuals to use a piece of property. If someone uses a piece of property without permission for an extended period of time, it may result in a prescriptive easement. This is a hostile easement and can eventually lead to losing the use or ownership of the portion of property in question. The minimum period of hostile use to establish a prescriptive easement varies from five to more than 30 years, depending on local laws.