What is easement in gross?
What are some examples of gross easements?
What’s the difference with an appurtenant easement?
We will look at what is an easement in gross, look at the easement in gross real estate definition, what is an example of easement in gross, gross easement contracts, who benefits from such rights, how the easement rights are terminated, compare it with appurtenant easements and more!
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Table of Contents
What is an easement in gross
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 are personal rights lined to the beneficiary as a person as opposed to linked to the land.
In many cases, the gross rights given are irrevocable for the remainder of the property owner’s life for so long as the owner holds title to the property.
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.
With the same logic, the beneficiary is also precluded from transferring the easement in gross rights to someone else.
In essence, the beneficiary’s easement in gross rights are non-transferable.
The main difference between a traditional easement and a gross easement is that the traditional easement is a right associated with the property whereas the gross easement is a right associated with the property owner.
Easement in gross definition
Let’s define easement in gross to understand the concept better.
According to Investopedia, an easement in gross is defined as:
An easement in gross is an easement that attaches a particular right to an individual or entity rather than to the property itself.
Many ask: does easement in gross run with land?
The definition given above is clear.
The easement rights are rights granted to an “individual” or “entity” rather than to the property itself.
In essence, the rights are specifically between the property owner (as a person or entity) and a beneficiary (as an individual or entity).
If the homeowner sells, the gross easement falls.
Easement in gross example
What is an example of an easement in gross?
There are many easement in gross examples that can be presented to understand better and illustrate the topic.
The common examples that you may be most familiar with are rights granted to utility companies to serve a property (easement by implication) such as:
- Utility services
- Telephone services
- Cable television services
- Water services
- Natural gas services
- Pipeline services
These are typical utility easements that are granted by the property owner to the business entities allowing them to provide the necessary services to the property and perform regular maintenance and repair.
Another example of easement in gross is with respect to preserving lands such as easements to maintain the agricultural potential of a piece of land or area or to preserve trees.
You can also have an agreement between two neighbours where one property owner grants gross easement rights to the other out of convenience such as letting a person fish in the ponds on the property.
Easement in gross contract
Do you need a contract for a gross easement?
Does an easement in gross need to be in writing?
In most cases, easements are granted on the basis of a written contract.
However, you can have some easements that may be implied in nature resulting from the long-term use of a property.
Without a contract, the property owner and the beneficiary may end up in legal disputes over what was the scope of the easement, how it should be exercised and the rights or restrictions associated with it.
As a result, even if a written contract is not necessary, it’s best practice to ensure you have a written contract.
It’s also worth noting that easements in gross do not have to be recorded as they do not represent ownership rights.
A property owner and the beneficiary of an easement in gross can enter into a contract outlining the easement rights granted by the property owner to the beneficiary.
Typically, the contract will outline the parties’ rights and responsibilities with respect to the use and exercise of the easement.
Such rights, authorizations and permissions can be quite broad.
You can have a commercial easement in gross, utility easement in gross or other types of easements granted to business entities.
An easement in gross in real estate can also be given to a private person or individual or personal easement in gross.
The private contractual nature of the easement in gross leads the parties to be free in determining the extent of rights and restrictions he or she is willing to live with and grant to the beneficiary.
There are many examples of easement in gross where the beneficiary does not own a real estate property nearby but is someone who has been granted certain rights by the property owner.
In other instances, the beneficiary could be a neighbour or someone living nearby.
There are no rigid rules as to who the beneficiary may be, where the beneficiary lives or how much the beneficiary must use the property.
What’s important is for the parties to define their rights under the gross easement agreement clearly.
Gross easement beneficiary
Any person or entity can become the beneficiary of a gross easement.
By definition, gross easements are personal rights granted by one property owner to another person or entity.
The rights are “personal rights” as they involve the property owner as a person and the beneficiary as a person.
In other words, the beneficiary is not allowed or entitled to perform a gross easement right transfer to someone else.
In fact, easement by gross rights are non-transferable.
As a beneficiary, the person or entity does not have to be a neighbour or a resident of the area to exercise the rights under an easement in gross.
Anyone can be granted easement in gross rights.
What’s important is that the beneficiary should not exercise easement rights in such a way as to cause damages to the property owner or unreasonably interfere with the owner’s peaceful enjoyment of the owner’s rights.
Similarly, the property owner granting easement rights to a beneficiary should allow the beneficiary to benefit from the associated rights without unreasonably interfering or preventing the gross holder’s use of rights.
Easement in gross termination
In gross easement is a type of easement that terminates when:
- The property owner transfers the property to someone else
- The property owner dies and the property is inherited by another party
- The property is alienated for any other reason such as foreclosure or other
Once the property title is transferred, the gross easement is terminated and no longer valid.
As a result, the beneficiary cannot legally impose that the new property owner grants the same easement in gross as the previous owner.
Easement in gross vs appurtenant
What is the difference between an easement appurtenant and an easement in gross?
Let’s compare an easement in gross vs easement appurtenant to find out!
An easement in gross is an easement that is granted by one party to another party.
The rights do not benefit the land but rather the party holding the easement benefits.
The most common form of easements in gross are utility easements where a company is granted the right to enter a property to install or access cables or piping in the normal course of business as they are serving the property owner.
The rights associated with easements in gross do not follow the land or property.
In other words, if the property is sold, all gross easements become invalid.
On the other hand, an appurtenant easement is a type of easement that benefits the land and not just a person.
Appurtenant easements are said to “run with the land” as they affect the parcel of land.
In other words, if the property or land is sold, the appurtenant easement will follow to the new property owner.
In the context of appurtenant easements, you must have at least two properties: one dominant tenement (dominant estate) and a servient tenement (servient estate).
In the context of in gross easements, you only have one property that is sort of the servient estate.
For example, a parcel of land can be burdened to give driveway access in favour of the neighbouring land.
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