Types of Easements

The topic of easements quickly becomes complex. But a great place to begin is to understand that there are two main types of easements: affirmative easements and negative easements. And then within each type, there are appurtenant easements and easements in gross. With that backdrop, it's easier to fill in the details. 

Most easements are affirmative. An affirmative easement gives the easement holder (sometimes called the dominant tenant) the right to do something on the servient tenement (the land imposed upon by the easement). 

A negative easement, on the other hand, entitles the dominant tenant to prevent the servient tenant from doing something on the servient tenement that would otherwise be permissible. Unlike affirmative easements, negative easements can be only be created expressly by a writing signed by the grantor. 

Both positive and negative easements can be either appurtenant or in gross. An easement appurtenant is one that benefits the holder of the easement in the physical use of the easement holder's own land. Think of it this way: two parcels of land are involved in an easement appurtenant, and the ability to use another's land benefits a person in that person's use of his own land. The classic example here would be when the holder of an easement is given the right of way across another's land.

An easement in gross, in contrast, benefits the holder of the easement, but the benefit is a personal or pecuniary benefit that is not related to the holder's use of the holder's own land. As an example, imagine a holder of an easement is given the right to swim on another's land. The privilege has nothing to do with the holder's own land: the land on which the holder of the easement can swim is burdened, however. 

This distinction might seem academic, but there are practical consequences. An appurtenant easement passes automatically if the holder of the easement (the person benefited by the easement) transfers the land benefited by the easement. This is true regardless of whether the easement is mentioned in the conveyance. It's said that the easement "runs with the land." 

Likewise, if the land burdened by the easement is transferred, the purchaser of the burdened land will be burdened by that easement unless the purchaser is a bona fide purchaser without notice of the easement. An easement in gross, in contrast, in not transferable (it does not "run with the land") unless it is for commercial purposes. 

The next post will focus on the various ways that easements are created.