The laws of property are predominately focused on the weighing of different interests held by different parties in the same piece of property. Although many people often believe that property “owned” outright leaves them with the only interest in that property, the reality is that a number of individuals can also hold legal interests in the very same tract of land. While leasehold and freehold estates are the most common form of interests in real property, there are a number of other interests that can frequently come into play and can be the focus on disputes between parties.
There are a number of different kinds of “easements,” and an easement in gross is just one of many; however, before one can understand the definition of an easement in gross, one must first understand the concept of easements in general.
Black’s Law Dictionary defines an easement as “an interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose.” Thus, easements are an interest in real property whereby the holder of the easement can assert some of his or her rights when disputes arise concerning use of the particular land.
Easements are unique, however, in that they may last forever. If they do so, this is generally referred to as an easement that “runs with the land.” Nevertheless, even these types of easements do not necessarily give the holder the right to possess, sell, or even to improve the land burdened by the easement.
An easement in gross is one that benefits a particular person, rather than the particular piece of land. By contrast, easements appurtenant are often ‘attached’ to the piece of property. Perhaps the best way to understand this distinction is through an example.
Imagine A owns an acre of land on a lake. A sells half of his property to B, who buys the parcel under the impression that he will also have access to the lake. However, the only access to the lake is on A’s land. If A specifically gives B the right to cross over his land in order to access the lake, then B would have an easement in gross because he has the personal right of access. In other words, if B later decides to sell his land and A’s intention was that the easement would not run with the land, then the buyer of B’s parcel would not have an easement, unless later implied by the law, either from prior use, or through a prescriptive easement, which requires many of the same elements as a claim of adverse possession.