A gross easement is commonly called an easement in gross and is one of the two most common forms of easement relating to real estate. The other type is referred to as an easement appurtenant. The appurtenant easement involves benefits to one piece of property at the expense of another. These easements belong to the land and are transferrable upon sale. A good example is an easement that allows access to one property by traversing another.
In contrast, an easement in gross benefits a person or entity, not the land. The easement stays with the land and can transfer with a sale. However, the beneficiary cannot transfer their easement rights to another entity. For example, one standard gross easement allows a utility company the right to construct power lines or other conveyance across a property the utility does not own. If the landowner sells the parcel, the utility company still has the right to an easement. Still, the utility may not transfer the easement to a different company.
Who has priority with a gross easement?
The property owner can use their asset without interfering with the easement holder's access. At the same time, the easement holder is allowed to take the necessary actions to achieve the benefit granted by the easement. The property owner can’t unduly limit the easement holder’s access to its purpose (for example, by building a fence that prevents the utility from reaching its power conduit. A court may have to intervene if the property owner and the easement beneficiary can't agree on reasonable access.
Special public access and conservation easements.
Conservation easements may restrict the use of land to protect the natural habitat, such as a wildlife preserve or an ecologically significant area. In such cases, an easement may prohibit the owner from conducting certain activities, including construction. This prohibition is a gross easement and typically accompanies the property when sold. The purpose is to protect the natural resources of the land.
Another unique situation with easements is when they are used to provide public access. A prime example is the beach access easements in place along the coast of California. The California Coastal Commission protects the public's right to access the beach by establishing permanent public easements, which require specified property owners to allow access across their property. These typically fall into the category of prescriptive easements.
What are the advantages and disadvantages of allowing easements?
First, it’s important to note that the property owner may not have a final determination of whether to allow an easement. In the examples cited, the property owner must allow access to the utility company. The advantage conferred is that the owner can gain electric power, or water, for example. However, if the utility constructs unsightly towers on your land, that could negatively affect the land’s value.
Similarly, if your neighbor needs to cross your property to reach their own from the public road, you could be forced to allow it if you refuse. On the other hand, some easement holders may pay the property owner for the access granted.
It's a good idea to check for easements when you are preparing to buy property, mainly if the parcel is in an area or has characteristics that make it a potential target.
This material is for general information and educational purposes only. Information is based on data gathered from what we believe are reliable sources. It is not guaranteed as to accuracy, does not purport to be complete and is not intended to be used as a primary basis for investment decisions. It should also not be construed as advice meeting the particular investment needs of any investor.
Realized does not provide tax or legal advice. This material is not a substitute for seeking the advice of a qualified professional for your individual situation.
All real estate investments have the potential to lose value during the life of the investment. All financed real estate investments have the potential for foreclosure.
