Easements and Transfer of Land

An easement is an agreement between two different landowners concerning right of way. When land is transferred — by purchase, lease, or otherwise — easements should be kept in mind. Easements may or may not be tied to the land.

Read on to learn the difference between:

• Easements that run with the land (easement appurtenant)
• Easements that are only personal to individual people (easement in gross)

For legal advice about easements, you’ll want to speak with a real estate attorney. An easement can affect a property’s value and your ownership rights, so it’s often helpful to get more specific information. 

What Happens to an Easement When a Property Is Sold?

Depending on the kind of easement, it can either terminate or transfer to the new owner during the sale. Most easements transfer with the property because they usually run with the land rather than a specific person. But there are exceptions.

Imagine you are considering buying a property currently benefitting from an easement. If the easement is transferable, you would assume the specific rights it grants. If it’s not transferable, you should understand what a lack of those rights would mean for you.

A title search allows homebuyers to identify recorded easements to a property. But some types of easements, like prescriptive easements, aren’t always recorded.

Easement in Gross

Traditionally, easements in gross were easements that:

• Could not be transferred
• Were not tied to a particular piece of land

Today, courts typically refer to these types of easements as personal easements. A person could grant an easement across a residence to a neighbor. But this type of easement would not continue if the neighbor (holder of the easement rights) sold the property.

Nevertheless, an easement that began as personal may be transferable. This is particularly true if it is a commercial easement, such as a utility easement. 

Easement Appurtenant

When a property title is transferred, a written easement typically remains with the property. Such an easement that runs with the land is an easement appurtenant. This means that if the property is bought or sold, it’s bought or sold with the easement in place. The easement essentially becomes part of the legal description.

Transfer of Property With Implied Easements

Not all easements are written into a legal document, but most of them are. Implied easements may not be written but can still run with land. 

Consider a large parcel of property with residential use. Suppose the parcel is subdivided into smaller lots and sold to different people. The geography is such that each of the smaller lots can benefit from the easement to gain access to the road. In fact, the easement is reasonably necessary for the regular and ordinary use of the properties. Here, each of those property owners will usually be permitted to use the easement, even after sale.

Transfer of Property With Express Easements

Most easements are created through written documents, such as:

• Different types of deeds, such as grantor-grantee deeds that transfer real property to new owners
• Estate planning or probate documents, like wills and trusts that leave property to family members
• Private agreements between entities or people

A written easement, such as one contained in a grant deed form, requires:

• Information typically contained in a property deed transfer, such as a legal description of the property
• A notary public to notarize signatures (in most states)
• New deed recording at the county recorder’s office so that ownership of real property and easement ownership rights are memorialized in government records

The transfer of property in real estate transactions will not affect the validity of a written easement. As with encumbrances like lender deeds of trust or property tax liens, easements are binding on a homeowner’s property.

Some real estate transfers may specify how ownership interest in easements may be affected. But property owners may only be able to pass good title to the extent it doesn’t interfere with their easement obligations.

Easements continue to affect all kinds of deeds, including:

• Quitclaim deeds
• General warranty deeds
• Special warranty deeds
• Gift deeds
• Joint tenancy deeds with rights of survivorship (with co-owners as joint tenants)

Learn More With an Attorney

A real estate attorney can provide legal advice on easements and help you determine your legal rights in both gross and appurtenant easements. If you’re unsure about your rights or need representation in court, they can also help you with your case.