Determining If Your Neighbor’s Easement Is Transferable

An easement is a right to use another’s property. Your neighbor may have an easement behind your house. Whether the easement will transfer with land the neighbor plans to sell depends on the type of easement he or she has and the laws in the state where you live.

Understanding Easements

Easements are broadly categorized as “easements appurtenant” versus “easements in gross.” If the easement is considered “appurtenant,” it runs with the land. In other words, the easement stays with or belongs to the land. When a new owner buys the property, the new owner owns that easement. On the other hand, an easement in gross is a personal easement between particular parties, and does not go with the land.

Determining Type of Easement

Determining whether your easement is appurtenant or in gross involves looking at the type of easement you might have and how the easement was created. For instance, easements can be labeled as express or implied. Essentially, this means:

• If you have an express easement, you may have a clear written agreement that your neighbor has an easement behind your land, and this easement may be recorded and be part of the land deed.
• If you have an implied easement, you may have simply always allowed your neighbor to use the land and intended that he be able to use it. In this case, an easement will have existed without necessarily being in writing.

In general, if you have an express easement, it will be attached to the land and belong to the new owner. If you have an implied easement, this may most likely be an easement in gross and not transferable with the sale.

To determine exactly what will happen to the easement when your neighbor sells the property is best explained by a real estate attorney.

Case Studies: Determining if Your Neighbor’s Easement is Transferable

Case Study 1: Appurtenant Easement

John owns a property with an appurtenant easement that grants his neighbor, Sarah, the right to use a portion of his land for driveway access. When John decides to sell his property, the appurtenant easement will transfer to the new owner, ensuring Sarah’s continued access rights.

Case Study 2: In Gross Easement

Mark has an in gross easement with his neighbor, Lisa, which allows her to cross his property to access a nearby pond for fishing. This type of easement is personal and does not transfer with the land. If Mark decides to sell his property, the in gross easement will not be transferred to the new owner, and Lisa’s access rights may be affected.

Case Study 3: Ambiguous Easement

Amy and Mike share a driveway with their neighbor, David, which has been used by both parties for years. However, there is no clear documentation specifying whether the easement is appurtenant or in gross. When David decides to sell his property, it becomes necessary to consult a real estate attorney to determine the nature of the easement and its transferability.