Easements explained
Know what an easement actually gives someone, and why it matters whether it is tied to the land or to a person.
An easement is a legal right to use someone else's land for a specific purpose, without owning it. An easement appurtenant is tied to a parcel of land and transfers automatically when that parcel sells. An easement in gross belongs to a specific person or entity and generally does not transfer with a sale.
What an easement actually gives you
An easement is not ownership. It is a right to use a defined piece of land for a defined purpose, held by someone who is not the owner. A utility company running power lines across a lot, a neighbor sharing a driveway, or a community using a strip of land to reach a lake, all of those can be easements. The underlying lot still belongs to whoever owns it; the easement holder only gets the specific use the easement describes.
Two kinds of easement, and why the difference matters
An easement appurtenant is attached to a piece of land, not to a person. When that land sells, the easement goes with it automatically, the new owner gets it without asking for it and without the neighbor's agreement.
"These easements transfer if the attached property does."
Source: Appurtenance, Cornell Law School Legal Information Institute
An easement in gross works differently. It belongs to a specific person or entity, like a utility company, rather than to a neighboring parcel. It generally does not pass automatically to a new owner the way an appurtenant easement does.
Where your community's easements come from
Easements affecting your community are typically established in the recorded documents for the property, most often the plat that divided the land into lots and rights of way, or the declaration itself. Because these documents are recorded with the local land records office, they are part of the public record for the property, along with any recorded amendments. If a board member is not sure whether an easement was ever properly created, the recorded plat and declaration are the place to check first, not board meeting minutes or internal files.
When to stop guessing
Exactly how easements are created, interpreted, and terminated is a matter of state property law, and the line between an easement, a license, and a restrictive covenant can turn on the specific wording in your documents. For a real dispute over a specific easement, that is a question for a real estate attorney or the Restatement (Third) of Property: Servitudes, the standard legal reference on the subject, not something a board should resolve on its own reading of the plat.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
A utility company holds the right to run power lines across a corner lot, a right that has nothing to do with who owns the lot next door. What kind of easement is this most likely?
Lot 12 has always used a shared driveway easement crossing Lot 13 to reach the street. Lot 12 sells to a new owner. What happens to the driveway easement?
A board member wants to know whether an old easement across the common area was ever properly created. Where should they look first?
Sources
- Appurtenance, Cornell Law School Legal Information Institute
- ALTA/NSPS Land Title Survey Standards, American Land Title Association and National Society of Professional Surveyors
- Restatement (Third) of Property: Servitudes, American Law Institute
Related elsewhere in the Academy
Governing Documents
Next, see how these recorded documents rank against each other in Understanding the hierarchy of HOA documents.
How easements are created, interpreted, and ended, and where the line falls between an easement, a license, and a restrictive covenant, vary by state property law and by the specific wording in your recorded documents.