An easement is an interest in land allowing a person or the owner of a parcel of property access to another person’s land. For example, the owner of a parcel may grant the owner of another parcel the right to enter and remove timber. This type of easement may be either an easement in gross, also known as a personal easement, or an appurtenant easement.
Blackacre and Greenacre signify fictional parcels of property; according to the 'Lectric Law Library, these terms often are used when describing property law. Easements involve “dominant” and “servient” estates. The dominant estate is the parcel of property that benefits from the easement; the servient estate is the parcel of property subject to the easement.
Easements in gross often are referred to as personal easements. These easements do not “attach” to the land. An easement in gross, therefore, has no dominant estate, only a servient estate. The right granted by the easement in gross is held personally and extinguishes when the easement holder dies. A common example of an easement in gross are public utilities easements. A public utility may have the right to install electrical lines over a parcel of property. This easement is held by the public utility company; it is not attached to a dominant estate. According to the Virginia State Bar, courts do not favor easements in gross. If a question arises as to what type of easement is at issue, courts often construe the conflict in favor of an easement appurtenant.
Appurtenant easements “run” with the land. These easements can be transferred by deed or probate laws. The right to the easement benefits the dominant estate, not just the particular owner of that parcel of property. If the owner of Greenacre has an appurtenant easement and transfers his ownership to a new person, the easement remains with Greenacre, it does not stay with the old owner. If Blackacre is close to a main highway, the owner may allow owners of Greenacre to driver over Blackacre to access the main highway. An appurtenant easement is likely created in that scenario.
Creation of an Easement
Generally, easements are contractual. The owners negotiate the scope of the easement and price. Easements should be written, though in some cases an easement can arise by prescription or by necessity. If a Greenacre is completely landlocked and the other source of egress is through Blackacre, a court may declare that an easement by necessity has been created. In similar fashion, if one person commits some adverse act on the parcel of property for a long period of time, an easement by prescription may arise. State law dictates how a prescriptive easement arises; in general, the owner must know that someone is committing impermissible acts--such as removing timber without a right to do so--and let it continue to happen for a long period of time (10 years in Virginia).