Home Real Estate Appurtenant Easement (Best Overview: All You Need To Know)

Appurtenant Easement (Best Overview: All You Need To Know)

What is an appurtenant easement?

What are some appurtenant easement examples?

What is the difference with gross easements?

We will look at what is an easement appurtenant in real estate, what does appurtenant to the land mean, appurtenant easements examples, what is its meaning and definition, how it is created and terminated and more!

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What is an easement appurtenant

An easement appurtenant (appurtenant easement or usage rights) is a right granted by one property owner to use an adjoining property.

In this context, you have two properties where one property is the dominant tenement and the other party is the servient tenement

The rights associated with an appurtenancy are associated with the land.

In common terms, we say “right-of-way” or rights that “run with the land”.

In other words, if the property owner of a dominant estate sells the property, the new property owner will enjoy the same easement in appurtenant as the previous owner.

Similarly, if the property owner of the servient estate sells the property, the new property owner must accept the appurtenant rights already granted in favour of the dominant estate.

Appurtenant easement definition

Let’s define appurtenant easement so we can better understand the concept.

According to US Legal, an appurtenant easement is defined as:

An appurtenant easement is a right to use adjoining property that transfers with the land. 
Author

In other words, the appurtenant easement is associated with land or properties directly.

Unlike gross easements that are personal in nature, appurtenances in real estate are linked to a property.

Appurtenant easement law

In property law, an appurtenant easement is a legal right granted by a property owner to have another use and access his or her land.

The easement appurtenant is a type of easement rights granted in favour of a parcel of land or property.

As such, the easement by appurtenant is a property ownership right associated with the dominant land.

The common feature of appurtenant easements to land or property is that one property serves another property and the appurtenant to land or appurtenant to property is transferable with the title of the property.

There are different types of appurtenant easements to consider:

  • Express easement
  • Easement by implication 
  • Easement by necessity 

An express easement is one that is created by an easement agreement or via the judgment of the court.

An easement by implication is one that is implied through the continued use of a parcel of land by another property owner such as a continued use to access the driveway.

An easement by necessity is when a parcel of land would not be usable without the easement such as in cases of landlocked properties.

Appurtenant easement agreement 

Appurtenances in real estate are created by contract or deed.

Considering appurtenant easements are ownership rights associated with the dominant estate, it’s important that the deed of appurtenancy adequately outline the associated rights.

Typically, a lawyer or legal professional should be consulted to ensure the appurtenant easements are properly documented and recorded.

A lawyer will generally include the following provisions in the appurtenant easement contract:

  • The purpose of the appurtenances (why is there an appurtenant easement need)
  • The term or duration of the rights (for a limited period of time or perpetually)
  • The consideration in exchange for granting such rights (financial considerations)
  • The nature of the right (exclusive appurtenant easement or non-exclusive appurtenant easement)
  • Any ongoing construction or maintenance needs 
  • Standard contractual provisions such as indemnification clause or insurance clause 
  • Agreed form of estoppel certificate (in case the validity of the easement must be confirmed)

It’s also generally a good idea to perform a title search and get title insurance as may be recommended.

There are easements that are implied by the parties that do not have a contract and certain rights can be invoked through the long-term use of the property.

However, if the easement rights are not recorded in writing, they may not be passed with the property title.

Appurtenant easement example

What are some examples of appurtenant easements?

There are many possible examples that we can use to understand an easement appurtenant better or to better illustrate the concept.

Here are some common examples:

  • Properties sharing a common driveway 
  • Properties sharing a common parking area 
  • A property owner’s use and access to another adjoining property
  • Property connecting to a stormwater drainage system 
  • Private access to a property that is landlocked 
  • Use of a private road or private path 
  • Egress or ingress 

In these examples, you have two properties or parties where one party provides the easement while the other benefits from the easement.

An example of an appurtenant easement is when a property owner grants a right-of-way to a neighbour so they can use his or her property to access a beach or lake.

This right of passage benefits the neighbour’s land.

As a result, if the property owner who had given the right of access sells his or her property, the neighbour can still enjoy and benefit from the appurtenant easement rights providing access to the beach.

Appurtenant easement termination 

How can an appurtenant easement be terminated?

The exercise of appurtenant easement rights is generally indefinite in time.

In other words, they can be exercised for so long as there is an event leading to its termination.

There are a couple of ways of terminating appurtenant easements:

  • The property owners of the dominant estate and servient estate reach an express agreement (release)
  • If the owner of the dominant estate purchases the servient estate or vice-versa (merger)
  • By estoppel or prescription 

With regards to implied easements, they can be terminated either by abandonment or the ending of the necessity.

Easement appurtenant vs easement in gross

What is the difference between easement appurtenant and easement in gross?

Easements appurtenant are different from gross easements primarily as one is an ownership right and is associated with the property whereas the other is a personal right associated with the beneficiary of the right.

An appurtenant easement in property law is a right-of-way, access or use of a property or land that benefits another land.

The property that grants the appurtenant easement to the other is considered as the servant property while the other property benefiting from the easement is the dominant property.

An easement in gross is a right granted by one property owner to a person or entity to make use of a property in a certain way.

The rights granted to another person under an easement in gross will remain in effect for so long as the property owner owns the property.

In other words, easement by gross rights benefits a person or beneficiary.

If the property is sold to a new property owner, the beneficiary of the easement in gross will be terminated with its beneficiary.

Should the beneficiary wish to continue using the property the same way as before, it must negotiate a new easement in gross with the new property owner.

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