Easement In Gross

Easement In Gross
See also


Easement In Gross is the limited right of one person to use another's land (servient estate) when such right is not created for the benefit of any land owned by the owner of the easement. In such a case, there is no dominant estate, because the easement attaches personally to the owner, not to the land. The easement is gross in an encumbrance on the servient estate. If there is uncertainty as to whether an easement is appurtenant or in gross, most courts interpret it to be an easement appurtenant[1].

Even though an easement is a real property interest, its use may be purely personal. An easement in gross is a personal right to use land. The right belongs to an individual and is not appurtenant to any ownership interest in land. Because an easement in gross in a personal right, it does not "run with the land". Sometimes, a railroad's right of way is an easement in gross. The railroad does not own any adjacent land but has the right to travel over the land on which the easement lies[2].

Creating an Easement

Easements in gross can be created in any of the following ways[3]:

  • Express grant- an easement is created by express grant when a property owner grants someone else the right to use the property.
  • Express reservation- a landowner who is conveying a portion of his or her property may reserve an easement in that parcel to benefit the parcel of land that retained.
  • Implication- an easement by implication can be either an implied grant or an implied reservation. This type of easement can arise only when a property is divided into more than one lot, and grantor neglects to grant or reserve an easement on one lot for benefit of the other.
  • Prescription- an easement by prescription is created through long-term use of land without the permission of the landowner.
  • Dedication- a private landowner may grant an easement to the public to use some portion of his or her property for a public purpose, such as a sidewalk.
  • Condemnation- the government may exercise its power of eminent domain and condemn private property to gain an easement for a public purpose, such as a road.

Categories of easements in gross

In the states where commercial easements in gross are assignable, courts often distinguish between exclusive in gross and nonexclusive easements in gross[4]:

  1. Exclusive easements in gross
  2. Nonexclusive easement in gross

Exclusive easements in gross are those where the easement holder has the sole right to use an easement. Generally a person owning an exclusive easement in gross has the sole power to authorize others to use the easement. Even the servient estate owner cannot allow others to use the easement. In general, if a person (or a company) has an exclusive easement in gross, that person may permit many others to use the easement as long as the total burden on the servient estate does not amount to a surcharge or misuse of the easement.

Persons granted nonexclusive easements in gross, on the other hand, cannot subdivide or apportion any rights to the easement. A nonexclusive easement in gross is one in which the easement holder has right to use the easement, but the servient estate owner can authorize others to use the easement and the holder of the nonexclusive easement in gross cannot prevent the servient estate owner from granting the right to use an easement to other persons. The servient estate owner in effect retains the power to decide how many persons can use the easement.

Footnotes

  1. J.W. Reilly 2000, p.135
  2. Ch.O. Stapleton, M.R. Williams 2010, p.108-109
  3. K.J. Haupt 2010, p.68-70
  4. D.B. Burke, J.A. Snoe 2008, p.508-509

References

Author: Emilia Trzeciecka