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What Is An Easement Appurtenant?

3-Minute Read
January 3, 2024
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Before buying real estate, you want to know whether anyone else has the right to access your property. An easement appurtenant means another person has a legal right to use your land, and there’s nothing you can do about it.  

At first, this can seem like a startling statement, but not all easements are a problem. However, you do want to understand how easements work, how they’re created and what they mean for you as a property owner.

Easement Appurtenant Definition

An easement appurtenant gives individuals, companies or government entities a legal right to access another person's property for a specific purpose. It involves two adjacent parcels of land that become linked as servient and dominant estates. The dominant estate is the property benefitting from the easement, and the servient estate is the property over which the easement runs.

There are many different reasons easements are put in place. For example, an easement gives utility workers access to maintain the water and sewer lines which is something most homeowners are in favor of. You may also have an easement on your land if it blocks access to the main road.

However, easements can also be created through legal agreements, like deeds or contracts. This type of easement is subject to certain legal requirements and restrictions, and any changes or disputes regarding the easement may involve legal proceedings.

Servient And Dominant Estate Property Rights

At first glance, easements can be difficult to understand and that’s largely due to the legal jargon used: words like “servient” and “dominant estates.” But the dominant estate is simply the land benefitting from the easement, while the servient estate is the land subject to the easement.

Both the servient and dominant estates have very distinct property rights. The dominant tenement has the right to use the easement for a specific purpose, like accessing the property, or installing utilities.

The dominant tenement has a right to enforce the easement and the servient tenement can’t interfere with this arrangement. This requirement restricts the servient owner’s full use of the property in the area covered by the easement. 

Easement Appurtenant Vs. Easement In Gross

Easement appurtenant involves two adjoining properties —  the dominant tenement and the servient tenement. This type of easement is tied to land ownership, so when the current owner sells the property, easement rights are automatically passed onto the new owner.

In comparison, an easement in gross gives someone other than the property owner the right to use the land. However, these rights aren’t irrevocable and they won’t transfer with the title after the property is sold.

How An Easement Appurtenant Is Created

Here are four different ways an easement appurtenant is created:

Express Easements

An express easement is created through a written agreement between two parties. This written agreement outlines the purpose of the easement, the specific rights granted to the beneficiary and any conditions or restrictions imposed on both parties. Express easements are the most straightforward option and ensure that future property owners can’t take away these rights.

Implied Easements

An implied easement doesn’t involve a written agreement — instead, it’s inferred based on the circumstances. There’s usually an unspoken understanding that an easement is necessary for reasonable use of the land.

For example, let’s say a large plot of land is divided into smaller plots and sold off to various buyers. If the only way for you to access your property is through the remaining land, an implied easement may be created. However, the exact laws will vary depending on the state you live in.

Easements Of Necessity

An easement of necessity is similar to an implied easement, but the biggest difference is that it’s absolutely imperative. Easements of necessity are often created when a property is landlocked, meaning there’s no access to a public road or right-of-way. In this scenario, it becomes necessary to ensure the reasonable use of the landlocked property.

Prescriptive Easements

A prescriptive easement is often acquired after an individual has been continuously accessing someone’s property for a long time. That person begins accessing the property without the owner’s consent and uses it for so long they actually gain a legal right to continue. The time frame required for prescriptive easements varies depending on where you live.

The Bottom Line

Learning that a property you want to buy has an easement appurtenant can be discouraging. However, the most important thing is to understand how the easement affects your rights as a property owner so you can go into the transaction informed. If you’re ready to move forward with your home purchase, you can start the process today.

 

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Jamie Johnson

Jamie Johnson is a Kansas City-based freelance writer who writes about a variety of personal finance topics, including loans, building credit, and paying down debt. She currently writes for clients like the U.S. Chamber of Commerce, Business Insider, and Bankrate.