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What Are Easements in Appurtenant?

By Bill Gassett | October 3, 2022

If you have a large parcel of land and you want to release some of this equity, selling off sections could result in some access problems. If access to the road is limited, an easement in appurtenant might be required.

You might have a neighbor who crosses your property regularly to access a park or as a shortcut somewhere. If this happens for a long enough time, this situation could become a permanent right that they have to use your property through an appurtenant easement.

There are a few other types of situations where an easement in appurtenant might be necessary. We take a look at easements in appurtenant and what you need to know about them.

What are Easements?

If you need to use somebody else's property for a specific reason, they can grant you an easement. Easements definition are often misunderstood as there are many types. An easement will give you the right to use someone's land for the specific purpose granted in the easement.

Easements are property rights bought, sold, or even given away as the owner sees fit. Owning an easement can increase the value of the property that has gained this right, and if that is the case, the easement will likely cost more to purchase.

Easement in Appurtenant
How Does an Easement in Appurtenant Work?

What is an Easement in Appurtenant?

An appurtenant easement is used when two neighboring properties are linked together in an agreement. One of these properties will be the dominant tenement, and the other will be the servient tenement.

The dominant tenement property will need access through the servient tenement to a road or something else. This arrangement only benefits the dominant property, with the servient estate allowing the appurtenant easement.

The owner of the dominant tenement cannot sell the easement in appurtenant. The easement is part of the property and cannot be transferred. It can be ended by no longer using it, and this right will be lost when enough time has passed. A faster option is to sign a release document, lifting the obligation from the servient property.

How Do an Easement in Appurtenant and an Easement in Gross Differ?

Easements in gross are arrangements that give certain people the right to access someone else's property. This doesn't become part of the title and isn't transferred when the home is sold. The person can only use this easement to who it was granted, and they can’t transfer or sell it to anyone else.

Easements in appurtenant still give access to another party, but it is tied to the property. It can also be transferred to other people when the property changes hands.

How are Easements in Appurtenant Created?

These easements can happen in several different ways. Appurtenant easements can be created using implied easements, prescriptive easements, express easements, and easements of necessity. Let’s take a closer look at how this works.

Implied Easements

When an area of land is subdivided, there could be rights that continue from before the land was divided. If the land is divided so that access is impossible for some lots, there will be an implied easement to the road or for utilities. This will give an easement to the owner of the property.

Prescriptive Easements

Prescriptive easements can occur when someone uses your property continuously and for a long time without your permission. They are encroaching on the property. The exact details vary in different states, though generally, it needs to be done openly and without regard for the owner's wishes.

After a certain amount of time, the trespasser can claim a prescriptive easement. The length of time could be 20 years of continuous use for this easement to be granted, though that depends on the state law. The owner of the home can do a few things to prevent a prescriptive easement from being granted, like stopping the trespass.

Express Easements

Most appurtenant easements are express easements. It is created when it is given or sold to a neighboring property. A court order can be used to create the easement, or there can be an agreement between the estates' owners.

Easements of Necessity

Easements of necessity are similar to implied easements. They are created when the land and ownership are split, and an easement is required for access.

Final Thoughts on Easements

As you can see there are several types of easements. Some have not even been discussed here, however, the resource above from Maximum Real Estate Exposure covers some of the other more common easements that are found in real estate.

When you are buying land or a home, it is always essential to research if there are any easements that are attached to the property. An easement has to potential to make a piece of property less usable.

When this is the case, the easement could also impact the market value. When you have any questions about easements, it is crucial to hire a real estate attorney. An attorney for real estate does many things for buyers. One of them is to research any encumbrances with a property.

Sometimes doing your own due diligence isn't enough and an real estate lawyer is necessary. Some properties need more due diligence than others. Making a mistake could cause distress that you'll likely regret.

Bill Gassett is an authority in the real estate industry with 38 years of experience. Bill is well respected for his informative articles for buyers, sellers, and fellow real estate agents to make sound decisions. His work has been featured on RIS Media, the National Association of Realtors, Inman News, Newsbreak, Credit Sesame, Realty Biz News, and his own authoritative resource, Maximum Real Estate Exposure. He has been on of the top RE/MAX agents in New England over the last two decades.
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