Transfer and Divide Easements - dummies

Transfer and Divide Easements

By Alan R. Romero

Property law allows for an easement owner to transfer his easement to another person. And as with other property interests, in some ways an easement owner can divide his easement rights and transfer some of them to another person. Similarly, a servient owner can transfer the servient land to another person.

An easement always stays attached to the servient land, so any transfer of the land also transfers the burden of the easement. The deed transferring the servient land doesn’t have to mention the easement in order for the easement to transfer with the land.

However, if the new owner of the servient land didn’t know about the easement and couldn’t reasonably have discovered the easement, then a state recording statute may free the new owner from the easement burden.

Sticking to the land: Transferring appurtenant easements

An easement that benefits particular land is appurtenant to that land. For example, a right-of-way to drive across servient land to access adjoining dominant land is appurtenant to the dominant land.

A profit also may be appurtenant to specific land. For example, a profit to remove soil for agricultural purposes on the dominant land would be appurtenant to that land.

Dividing appurtenant easements

Unless an easement agreement says otherwise, an appurtenant easement attaches to the entire dominant parcel that the dominant owner held at the time the easement was created. So if the dominant owner divides the dominant land among several owners, all those new owners have the same right to use the easement, even though they don’t own all of the original dominant parcel.

However, division of the dominant land generally results in more intensive use of the easement. If the increase in use is unreasonable and unforeseeable, then the dominant owners may be guilty of trespass. However, because subdivision is common, courts typically assume that subdivision for development is reasonable and foreseeable unless an easement agreement says otherwise.

Transferring easements in gross

Profits in gross are freely transferable, but only some easements in gross are transferable. Courts generally agree that commercial easements in gross — those benefiting commercial operations rather than specific land — are transferable. Examples of such easements include utility easements for pipelines, transmission lines, and telephone lines; railroad easements; and recreational easements for businesses (such as boating, fishing, and hunting rights).

On the other hand, personal easements in gross — created for the easement holder’s enjoyment rather than for economic benefit — are not transferable. For example, recreational easements to boat, fish, and hunt may be for the personal enjoyment of the easement holder.

The parties to an easement can agree that an easement is transferable, not transferable, or transferable only in specified situations. Even if the parties don’t directly say whether an easement in gross is transferable, they may otherwise indicate their intention.

You could say that commercial easements, for example, are transferable because the nature of the easement suggests that the parties intended it not just to benefit a particular person or company but to benefit a particular operation that might later change ownership.

The parties may otherwise indicate their intention to allow or restrict transfer of an easement in gross. For example, an easement agreement may grant an easement to the named grantee and his “heirs and assigns.” Some courts say those words sufficiently indicate the intention to make even a personal easement transferable.

Others suggest that such indications of intent are just one relevant factor to consider, along with other factors such as

  • How much the easement holder paid for the easement

  • How much the transfer of the easement may increase the burden on the servient estate

  • The relationship between the grantor and grantee and the circumstances in which the easement was created

Some states have passed statutes that make easements in gross transferable unless the creating instrument says otherwise.

Dividing easements in gross

The owner of an easement in gross — one that benefits a person or commercial operation rather than land — may divide the benefit of the easement among multiple owners if the easement agreement says so. But often the easement agreement isn’t explicit about division of the benefit, so courts have to decide whether the parties intended to allow such division of the easement.

If the instrument creating the easement says it’s “exclusive,” that generally means that the servient owner can’t give that right to anyone else. Instead, the dominant owner can transfer that right in whole or in part to others.

For example, the owner of an exclusive pipeline easement could share that easement with other pipeline companies. Similarly, if an easement or profit specifies the extent of permitted use by the dominant tenant, the dominant tenant can share the easement with others as long as he doesn’t exceed the specified maximum use.

If the easement isn’t exclusive, some courts say that it can’t be divided. But most courts would probably agree that the easement can be divided if the grantor somehow indicated the intent for the easement to be divisible.

Courts also may allow division of an easement or profit in gross if the division doesn’t increase the burden on the servient estate. Some courts still apply the traditional one stock rule, which says that when multiple parties use an easement in gross they exceed the scope of the easement unless they use the easement as one enterprise, such as partners and joint venturers.

Most courts, however, allow multiple parties to use an easement as long as their uses don’t increase the burden on the servient estate, regardless of whether they act as one enterprise.

For example, some courts have held that a utility easement holder could sell to a cable television company the right to install cable television lines on existing utility poles, because doing so doesn’t increase the burden on the servient land.