An easement is the right of one person to use the land of another for a specific purpose. In order for an easement to exist there must be a property that is burdened, a property that is benefited and a defined easement area. For example, if Lot A has an easement running across it to a road so that Lot B is not landlocked, Lot A would be the burdened property and Lot B would be the benefited property.
An easement may be characterized as either an appurtenant easement or an in gross easement. An appurtenant easement benefits a tract of land. For example, an easement that grants a landlocked tract access to a road would be considered appurtenant.
An in gross easement is specifically for the benefit of the owner of the easement. An in gross easement does not pass with title and the owner may not transfer the easement unless the easement was created for commercial purposes. For example, an easement that allows John to walk across a property so that he can fish would be an in gross easement. The easement benefits John personally and not any property. Therefore, the easement cannot be transferred to a future owner.
Recognizing the difference between an in gross easement and an appurtenant easement is important for a real estate agent because the appurtenant easement transfers with the land while an in gross easement typically ends with the person and cannot be transferred. If your client says “I have an easement” you will need to recognize the difference before advertising that the easement rights will transfer. If you advertise that the property comes with a fishing right transfer you may discover at closing it does not. Therefore, before you advertise any easement rights it would be a great idea to consult a closing attorney.
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