Do easements transfer when property changes hands?

| Jun 24, 2020 | Real Estate |

An easement often evokes a level of concern in property owners and prospective buyers. Its existence can feel like a burden or obstacle to each party’s goals. When considering a real estate transaction, you should not only take the time to uncover any easements, but also consider their short- and long-term impact.

Because in many cases, a purchase or sale will not put an end to the arrangement.

The basics of easements

An easement is essentially the right to utilize land or property owned by another party. When an easement is created, the benefitting party does not take any ownership. They have simply been granted legal access to use a specific portion of the property for a defined purpose. Common reasons for an easement include:

  • A landlocked parcel that has no direct access to a public road
  • The need for a utility company to access infrastructure or equipment located on or near private land
  • A pathway for the public to access an area of interest, such as a beach
  • A personal easement allowing for an activity on the property, such as hunting

What happens when land affected by an easement changes hands?

Easements often transfer

Most easements fall under the category of easement appurtenant. These easements are essentially tied to the land itself, not a person. That means if the property is purchased or sold, the easement subsists.

An easement in gross, on the other hand, is generally tied to a specific party or individual – not the land. It is a personal right for someone to use property that is not their own. These types of easements frequently cannot be transferred, and in certain cases, a transaction involving the property in question could result in its termination.

It is worth noting the law around easements is quite complex. There are many small factors that could affect the answer to your particular question, including any contractual language tied to the easement. This post offers only a brief overview of some general concepts.

Because of this, it is almost always better to reach a place of legal certainty before making any commitments.

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