Easements allow non-owners to use a property without transferring ownership. Gross easements benefit individuals and are not tied to land, while appurtenant easements are tied to land. A written contract is important to protect both parties. Unauthorized use of property can result in a prescriptive easement, leading to loss of use or ownership.
Easements allow for the use of a piece of property by someone other than the owner without transferring ownership. An easement can work with land or be assigned to an individual. If the easement benefits an individual and is not tied to the land, it is known as gross easement. In contrast, appurtenant easements are tied 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 a gross easement is not.
A gross easement does not transfer with the property when it is sold, and the individual benefiting from the easement cannot transfer the easement. An easement contract is between two individuals who grant an easement over a property owned by one of the individuals. A property that bears the burden of servitude is the servile tenement.
For example, landowner A has a pond on his property. He can grant an easement to Individual B for access to the fishing pond. Individual B does not have to own any property or live within a certain distance of landowner A to qualify for a gross easement.
Individual B cannot sell or share the easement. It’s for his personal benefit. If landowner A sells his property, the easement does not continue automatically. Individual B would have to apply to the new owner for a new easement. Since the burden of the easement is on landowner A’s property, it is the menial rent.
It is imperative to document a gross easement to protect both parties. Writing down the easement agreement and defining the size and duration of the easement can help avoid any future misunderstandings. Without a written contract, individuals have nothing to fall back on in the event of a dispute or disagreement.
Gross easements and appurtenant easements 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 can result in a prescriptive easement. This is a hostile easement and may eventually lead to the loss of use or ownership of the portion of the property in question. The minimum period of hostile use to establish a prescriptive easement ranges from five to more than 30 years, depending on local laws.
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