For several weeks, we’ve been writing about different types of easements and several cases involving them. As we start a new month, let’s step back and refresh the basics and define some terms. Remember, an easement is an interest in real property that grants someone the right to use the land of another for a specific purpose. It does not convey ownership—just permissive use.
At a high level, there are two types of easements in Michigan. We have not used these terms in prior articles, but labels that often come up in case law are easements appurtenant and easements in gross.
An easement appurtenant is completely tied to the land on which it’s granted. It cannot exist independently, and it runs with and is necessarily connected to that land. When property is transferred, an easement appurtenant goes with it.
In our week one scenario, we described an owner who thought he had an easement to cross his neighbor’s yard to get to a commons area. While the facts did not support that, he thought he had an easement appurtenant–one that could transfer to a new owner of the property. In fact, most of the cases we’ve discussed involved easements appurtenant.
An easement in gross is less common and granted to a specific entity or individual for a specific purpose. It doesn’t run with the land and can only be conveyed by the party that benefits from it. While occasionally a utility can be benefit from an easement in gross, most utility easements are appurtenant and run with the land. In some cases, they may be deemed to exist by a court out of necessity—but that’s another article.
We’ve also discussed broadly the roles of property owners and those who benefit from the easement. They have labels that often arise in case law as well.
The land itself over which the easement exists is known as the subservient estate. The property benefitting from the easement is the dominant estate.
Back to week one—if there had been an easement, the one selling his property and hoping to maintain access across his neighbor’s yard would have been the dominant estate. The neighbor’s property would have been the subservient estate. However, in the end, it was just a license.
Stay tuned for further discussion of easements in the coming weeks, and please contact us at Dalton & Tomich if you have any easement questions or other real property issues to discuss.
