Appurtenant Easements: Definition, Creation, and Common Disp...

Introduction

An appurtenant easement is a property right that benefits one parcel of land (the dominant estate) and burdens another (the servient estate). The key feature is that the right “runs with the land.” When either parcel is sold, the benefit and burden usually transfer automatically to the new owners. This makes appurtenant easements a common part of US real estate, especially for access roads, shared driveways, and utility corridors.

If you own property, plan to buy, or work with real estate transactions, it helps to know how these easements are created, what they allow, how far they reach, and how disputes get resolved. This guide lays out the essentials with plain-English explanations, examples, and practical tips.

Note: Easement law is state-specific. Always check your state’s statutes and cases or consult a real estate attorney for advice on a particular situation.

What You'll Learn

• What makes an easement “appurtenant” and how it differs from an easement in gross
• The roles of the dominant and servient estates and what “runs with the land” means
• How appurtenant easements are created: express grant, implication, prescription, and estoppel
• Common scope issues: location, width, permitted uses, overburdening, maintenance, and interference
• How easements transfer, how recording and notice work, and how title insurance treats them
• Ways easements end: release, merger, abandonment, prescription, and when necessity easements expire
• Real cases, including Brown v. Voss and Beach v. Fitzgerald, and what they teach
• Practical steps for buyers, sellers, owners, lenders, and HOAs

Core Concepts

Dominant vs. Servient Estates and “Runs With the Land”

• Dominant estate: The parcel that benefits from the easement (for example, the landlocked lot that gains a right of way).
• Servient estate: The parcel that bears the burden (for example, the neighbor’s land across which the driveway runs).

Key points:

• The benefit attaches to the dominant land, not to a specific person. When the dominant estate is sold, the easement benefit passes to the new owner without a separate deed, unless the grant says otherwise.
• The burden attaches to the servient land. A buyer of the servient estate usually takes the property subject to the easement if it’s recorded or otherwise apparent.
• Most appurtenant easements require two distinct parcels with different owners and a benefit that relates to land use (often called “touch and concern”).

Appurtenant vs. in gross:

• Appurtenant easement: Benefits a parcel. It passes with that parcel.
• Easement in gross: Benefits a person or company (for example, a utility). It does not attach to a parcel and usually does not transfer with a sale unless assignable by its terms or by law.

Creation of Appurtenant Easements

Common ways to create them:

• Express grant or reservation: Written instrument (often a deed or easement agreement) that satisfies the Statute of Frauds. Good drafting should spell out the location, width, permitted uses, maintenance duties, access for repairs, and whether the easement is exclusive or nonexclusive. Record it to put future buyers on notice.
• Implied easement by necessity: Arises when land is severed and a parcel is landlocked. Most states require strict necessity at the time of severance; the easement lasts only as long as the necessity exists.
• Implied easement by prior use (quasi-easement): When one tract is split and there was an existing, apparent, and continuous use before severance that is reasonably necessary for enjoyment of the dominant parcel (for example, a long-used driveway).
• Prescriptive easement: Created by open, notorious, continuous, and adverse use for the statutory period (varies by state). Permission defeats adversity; hostility does not mean animosity—just use without the owner’s consent.
• Easement by estoppel: If one owner allows another to rely on a permission (like spending money to build access) and it would be unfair to revoke, a court may enforce use rights.
• Plat or dedication: Subdivision plats and declarations often show and grant easements that appurtenantly benefit lots.

Scope, Use, and Limits

• Terms control: The written grant is the starting point. Courts enforce the stated location, width, and purpose (for example, “ingress and egress” or “vehicular and pedestrian access”).
• Reasonable changes: Normal growth in traffic or typical changes in vehicles may be allowed if consistent with the original purpose and not an unreasonable increase in burden.
• Overburdening: The dominant owner generally cannot use the easement to benefit other, non-dominant parcels or to support uses far beyond what was granted. This is a common dispute area.
• Location and relocation: The original location controls unless the easement allows relocation. A growing number of states follow a modern rule permitting the servient owner to relocate at their expense if it does not lessen utility, increase burdens, or frustrate the purpose. Check your state law.
• Maintenance and repair: If the grant is silent, many states assign maintenance to the dominant owner or to the parties based on their use. Agreements should clarify cost sharing, snow removal, drainage, and damage caused by each party.
• Interference: The servient owner may use their land in ways that don’t unreasonably interfere. Gates, fences, or landscaping that obstruct use can lead to injunctions and damages.

Transfer, Recording, and Notice

• Transfer: Appurtenant easements automatically pass with the dominant estate, whether or not the deed mentions them. It’s still smart to reference them for clarity.
• Recording and notice: Recording protects against later purchasers. Even if unrecorded, a buyer may be bound if there is actual or inquiry notice (for example, visible use of a driveway).
• Title insurance and surveys: Request coverage for appurtenant rights and review Schedule B exceptions. An ALTA/NSPS survey helps locate easements and reveal unrecorded ones suggested by visible use.

Termination and Changes

• Release: A written, recorded release by the dominant owner.
• Merger: If one person comes to own both dominant and servient estates, the easement ends.
• Abandonment: Usually requires more than nonuse; look for acts and intent to give up the right (for example, building a permanent barrier to your own use).
• Prescription: If the servient owner blocks the easement and meets the prescriptive period, the right can be lost.
• Condemnation: Government takings may extinguish or modify easements, with compensation issues tied to the impact on each parcel.
• Necessity easements: End when the necessity ends (for example, when a public road is built to the parcel).
• Amendments: The parties can amend or relocate by written, recorded agreement.

Key Examples or Case Studies

Example 1: Right of way to a public road

• Lot A sits behind Lot B with no direct street access. A recorded easement gives Lot A a 15-foot driveway across Lot B to the road. The easement benefits Lot A and burdens Lot B. When Lot A is sold, the buyer automatically keeps that access. If Lot B is sold, the new owner takes subject to the recorded driveway.

Example 2: Shared driveway on a lot line

• Two neighbors agree to share a driveway that straddles the boundary between their lots. The grant states each owner and their successors may use the entire driveway for access to their garages, share maintenance costs 50/50, and keep a 12-foot clear width. The easement appurtenant binds and benefits both parcels through future sales.

Beach v. Fitzgerald

• A court upheld a recorded appurtenant easement that allowed a neighbor to cross a private path for beach access. The ruling confirmed the right benefited the dominant parcel and bound later owners of both properties. Takeaway: recorded, appurtenant access rights usually continue through transfers.

Brown v. Voss

• A Washington case about scope. The dominant owner tried to use a right of way appurtenant to Parcel B to reach an additional Parcel C. The court held the easement could not be expanded to serve land outside the dominant estate. In that dispute, the court considered the equities when deciding the remedy. Takeaway: do not assume an appurtenant easement can serve after-acquired or adjacent parcels.

Optional modern trend example: Relocation by servient owner

• Some states allow a servient owner to relocate an easement at their expense if the change preserves utility and does not add burden. Others still require both parties’ consent. Always check local law and the text of the grant.

Practical Applications

For homebuyers and sellers

• Ask early about access: If the parcel isn’t on a public road, confirm a recorded appurtenant easement provides legal access.
• Read the title commitment: Review Schedule B exceptions for easements that benefit or burden the property. Request copies of all documents.
• Order an ALTA/NSPS survey: It can reveal the location of recorded easements and visible use that suggests unrecorded rights.
• Verify maintenance: Look for maintenance provisions in the recorded grant. If none, consider a separate maintenance agreement before closing.
• Check for overburden risk: If the current owner uses a driveway to reach another lot, confirm the easement allows it.

For current owners

• Use within the scope: Keep uses within the stated purpose and width; avoid serving non-dominant parcels.
• Keep it clear: Do not block the path or add gates without agreement if they could interfere.
• Put deals in writing: If you and your neighbor agree to changes, maintenance sharing, or relocation, document and record it.
• Track damage and costs: Keep receipts and photos; if disputes arise, you’ll want a record.

For drafting and negotiation

• Define the easement precisely: Include legal description, centerline or metes-and-bounds, width, and a clear purpose (for example, vehicular and pedestrian access).
• Address improvements and limits: Pavement type, drainage, snow storage, parking prohibitions, speed limits, truck access, and turning radii.
• Set maintenance rules: Who pays, how costs are allocated, scheduling snow removal, responsibility for damage, and dispute resolution.
• Plan for change: State whether relocation is allowed, by whom, at whose cost, and with what approvals.
• Clarify exclusivity: Most access easements are nonexclusive; if exclusive, say so and define the servient owner’s retained rights.
• Add enforcement terms: Notice, cure periods, remedies, and attorney’s fees provisions where allowed.

For lenders and HOAs

• Lenders: Confirm legal access is appurtenant to the collateral. Title policy should insure access or specifically note the easement.
• HOAs and developers: Record easements during platting. Create clear maintenance covenants and assign duties to the association or lot owners.

For dispute resolution

• Gather the facts: Collect deeds, plats, photos, and surveys. Note how the easement has been used over time.
• Start with a plan: Propose practical solutions (for example, widening a tight spot or adding drainage) with cost sharing.
• Consider mediation: Many neighbor disputes settle with a mediator and a written amendment.
• Court options: Declaratory judgment, injunction to stop interference, quiet title, and damages for obstruction or overuse.

Summary Checklist

• Two parcels with different owners, with a benefit tied to the dominant land
• Written grant recorded, or facts support implication, prescription, or estoppel
• Clear location, width, and permitted uses; avoid vague terms
• Maintenance, repair, and cost sharing defined in writing
• No expansion to serve non-dominant parcels unless the grant allows it
• Servient owner’s use cannot unreasonably interfere; gates only if consistent with the right
• Transfers: benefit and burden pass with the land; confirm in deeds and title policy
• Recording and notice satisfied to bind future buyers
• Ending the right: release, merger, abandonment, prescription, condemnation, or end of necessity
• For relocation or major changes, check state law and the grant’s language

Quick Reference