Easement In Gross
| Easement In Gross |
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| 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]:
- Exclusive easements in gross
- 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.
Examples of Easement In Gross
- Right of Way: An easement in gross is commonly seen in the form of a right of way, which allows a person to cross over another's property to access a different piece of property.
- Utility Easement: A utility easement is a type of easement in gross that gives a utility company the right to run power lines, water lines, gas lines, or sewage lines over or through a piece of property.
- Airspace Easement: An airspace easement, also known as an avigation easement, is an easement in gross that grants the right of flight to an aircraft pilot over a given piece of land.
- Telecommunication Easement: A telecommunication easement is an easement in gross that gives a telecom company the legal right to install and maintain telecommunication lines, such as telephone lines, internet cables, and satellite dishes, on a piece of property.
- Recreational Easement: A recreational easement is an easement in gross that grants the public or a specific group the legal right to use a piece of property for recreational activities, such as fishing, hunting, or camping.
Advantages of Easement In Gross
An Easement In Gross has several advantages, including:
- A greater degree of flexibility and control, as the easement is not attached to a specific piece of land, which can be transferred or assigned to another person.
- Easements in gross are often used to provide access to certain areas or resources that would otherwise be inaccessible to the public.
- The holder of the easement in gross does not need to own any land in order to enjoy the rights granted by the easement.
- Easements in gross can be used to establish rights of way, such as utility lines and pipelines, to help provide essential services to the public.
- Easements in gross can also be used to protect sensitive areas, such as nature reserves or historic sites, from development.
Limitations of Easement In Gross
- Easement in gross is not transferable and is not inheritable, meaning that it terminates upon the death of the owner.
- Easement in gross can be terminated by the landowner of the servient estate.
- Easement in gross is not considered a property right and is not protected by the law of eminent domain.
- Easement in gross may be limited by the terms of the agreement, such as the duration, location, and purpose of the easement.
- Easement in gross is limited to the specific individual granted the easement, meaning that they cannot allow other people to use the easement without permission from the landowner.
- Easement in gross may be terminated or altered if there is a material change in the use of the servient estate or if there is a change in the law.
Easement In Gross is a limited right of one person to use anothers land, without the benefit of any land owned by the owner of the easement. There are several other approaches related to Easement In Gross:
- The most common of these is a prescriptive easement, which is an easement that is acquired through continuous use of the servient estate for a certain period of time.
- A license is a permission granted by the servient estate owner to the holder of the easement to use the property, but it does not provide any rights that are enforceable in a court of law.
- An implied easement is an easement that is assumed to exist based on the circumstances but is not explicitly stated in a deed or contract.
- An easement by necessity arises when there is no alternative reasonable access to a property.
In summary, Easement In Gross is the limited right of one person to use anothers land (servient estate) when such right is not created for the benefit of any land owned by the owner of the easement. There are several other approaches related to Easement In Gross, such as prescriptive easements, licenses, implied easements and easements by necessity.
Footnotes
References
- Burke D.B., Snoe J.A., (2008), Property: Examples & Explanations, Aspen Publishers, New York.
- Haupt K.J., (2010), Washington Real Estate Fundamentals, Rockwell Publishing, Washington.
- Reilly J.W., (2000), The Language of Real Estate, Dearborn Real Estate, Chicago.
- Stapleton Ch.O., Williams M.R., (2010), California Real Estate Principles, Dearborn Real Estate, Chicago.
Author: Emilia Trzeciecka
