What is an easement in gross?

When you buy a freestanding single-family house, you’re typically buying the land it sits on, too. That means you own that property, and no one else can use it without your permission. At least, that’s the case as long as there are no easements in play.

An easement gives another party the legal right to use your property. Depending on the type and terms of the easement, that could mean anything from walking through the woods behind your home to flying through the airspace above it. Easements are common, and one of the most common types is called an easement in gross — here are the ins and outs of this property-ownership issue.

Easement in gross: a definition

In real estate, an easement legally gives someone other than the property owner the right to use that property in a specific way. With an easement in gross, that allowance gets extended to a specific entity, such as an individual, a family or even a company.

Let’s say you buy a property with a short hiking trail that leads to a lake. Your next-door neighbor’s family enjoys hiking around the lake, but can’t get there from their own property without using the short trail that runs through yours. You could set up an easement in gross, giving them the right to legally use that trail so they can access the lake without trespassing. The easement usually has specific terms attached — for example, you might restrict it to only certain people or for only a certain number of years.

The important thing about an easement in gross is that the rights lie with the people or entity it’s granted to, and not with the property itself. What does that mean? In the example above, it means that your neighbors specifically get the right to use your trail — if they move, the right does not automatically extend to the new homeowners. Instead, if the current neighbor sells their house (or passes away, or rents the house out to others), the easement in gross is voided.

Easement in gross vs. easement appurtenant

Easements aren’t always “attached” to people or entities, as is the case with easements in gross. An easement can also be attached to a property itself, meaning it is part of the property deed and transfers with the property whenever it’s sold or otherwise transferred to a new owner. That’s called an easement appurtenant.

Maybe you’re buying a house that was built many years ago, at the same time as the neighboring house. The house’s driveway extends a few feet over the neighbor’s property line, and an easement has been in place allowing the seller use of the portion of the neighbor’s property that the driveway sits on. If it is an easement appurtenant, meaning it is tied to the property itself, that right will transfer to you as the new owner of the home. However, if it is an easement in gross, that right will end when the seller’s ownership of the home ends. In this case, if you want to continue using the driveway, the neighbor will have to agree to a new easement.

Other common types of easements

There are many different types of easements. Here are a few other common types you might come across:

• Prescriptive easement: A prescriptive easement (or “easement by prescription”) might be legally recognized if another party has been using the property in a specific way for a long period of time — for example, a garden bed that crosses the property line or a fence built slightly over the line.
• Utility easement: It’s very common to allow utility companies specific use of private land so that they can maintain service, like letting the power company maintain their lines. These easements might also limit usage of the land (such as a prohibition on digging in a specific area).
• Avigation easement: If the property owner releases the rights to the airspace over their home above a specific height, usually to the government, it’s called an avigation or aviation easement. This often happens with properties close to airports.
• Easement by necessity: An easement might sometimes get attached to a property if a court determines it’s absolutely necessary — for example, if the only way your neighbor can access their property is by cutting through a corner of yours.

Bottom line

An easement in gross is tied to a person or entity, not to the property itself. If you’re buying a house, make sure you get a title search and take the time to fully understand any easements that might be in play. If anything is unclear, it’s worth consulting with a real estate attorney — you don’t want to find out after the fact that you’ve agreed to something you wish you hadn’t.