Non-Possessory Interests in Real Estate

Easements

An easement is the right of a person to make limited use of another person's real property without taking anything from the property. An easement, for example, can be the right to walk across another's property. Easements can be classified as either appurtenant or in gross.

Easement Appurtenant

An easement appurtenant is an easement given to confer a benefit to adjacent real property. This easement typically is created to permit ingress and egress to landlocked property. For example, suppose Alice purchases acreage in an area that has one main access road on the north end of the property. She then decides to keep a parcel (Parcel A) and to sell a parcel located on the south end of the property (Parcel B) to Bart. Eric wants assurance of access to the main road so Alice grants an easement across the east side of her property to the road. In granting this access, Alice has made her parcel the servient estate. Bart's parcel is the dominant estate. In other words, Alice's property "serves" Bart's property by providing access to the road.

An appurtenant easement runs with the land and thus is transferred to the new owner when the dominant estate ist ransferred. This is the case even if the deed transferring the real property does not specifically mention the easement.

Easements in Gross

An easement in gross is an easement given to benefit a particular individual or entity rather than one given to confer a benefit to real property. Although some easements in gross may be noncommercial, the most common are commercial in nature, such as those granted to utility or cable companies. The granting of the easements permits a company to come onto the grantor's real property to install and repair transmission lines. These easements are usually created by the execution of a "grant of easement," which contains the names of the grantor and grantee, the date upon which the easement is created, the legal description of the property on which the easement is conferred, and the specific rights of usage conveyed by the easement. The grant of easement is signed by the parties, witnessed and notarized, and recorded in the public records in the county in which the property is located. Because this easement is personal to the easement holder, it is not considered a right that runs with the land. Traditionally easements in gross were non-transferable for this reason. Today, however, many courts permit the assignment or sale of commercial easements in gross. (This is how cable TV companies got the right to dig up your yard or drive way to run their cables. They bought the right from the telephone company or whatever utility had the right.) There is a servient estate but no dominant estate.

How Easements are Created

Easements can be created the following ways:

  1. By deed

  2. By reservation

  3. By map reference

  4. By prescription

  5. By necessity

How Easements are Terminated

Easements can be terminated the following ways:

  1. By merger

  2. By lapse of specified time

  3. By written release

  4. By abandonment

  5. By prescription


Drafting Easements

Drafting an instrument to convey an easement is similar to drafting a deed.
  • Obtain a boundary survey of the easement area.
  • Obtain any third-party approvals needed.
  • Verify the legal names of both the grantor and grantee.
  • If the conferral is for a limited time, specify the term in the instrument, otherwise there is a presumption that the easement is perpetual.
  • Describe with specificity the right of use being conveyed.
  • Specify whether the right is exclusive or non-exclusive.
  • Specify the consideration for the easement if any, or if required by state law (even if there is no consideration in fact).
  • Detail any restrictions or limitations imposed on the right of use.
  • Apportion the responsibilities for maintenance of the easement between the grantor and grantee.
  • If desired by your client, include an indemnification agreement whereby the grantee indemnifies the grantor from any liability for injury to persons or property arising out of the use of the easement and require that the grantee carry appropriate liability coverage and provide the grantor with a copy of the policy.
  • Have instrument signed by the grantor and grantee and witnesses as required.
  • Record the instrument.



Sample Instrument

I will hand out readable examples in class.



Licenses

A license is the personal right to perform specified activities on the real property of another. A license is often difficult to distinguish from an easement in gross. The most obvious distinction is that an easement must be in writing to be enforceable. (Remember the Statute of Frauds.) If its not in writing, its not an easement. However, that doesn't help you if you're trying to determine whether your client needs an instrument. One way to make the distinction is to say that the emphasis with a license is on the right to perform activities on the land, wherease the emphasis with an easement in gross is on the right to use the land.

Some licenses are implied. For example, the owner of a store impliedly gives customers a license to enter the premises to shop. However, he does not give an implied license for people to come in and hand out political flyers. If they do so without permission, he can tell them to leave. For that matter, a license is revocable according to the terms of the license, or if none are given, at the will of the grantor. A gratuitious license can be revoked at will.
A license can also be express, either oral or written.


Profit a Prendre

A Profit a prendre is the right to remove certain items from another's land or to remove a portion of the land. What generally is removed is a natural resource such as lumber, minerals, or crops.