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Is the Easement in Gross?

Written by Lawrence Opalewski on September 24, 2021 Category: Firm News

An easement is the right to use someone else’s property for a certain purpose. In Michigan, easements are often given to provide access to one of Michigan’s many beautiful lakes. When these easements are drafted, they usually state that they “run with the land.” In other words, the easement is now attached to the parcel of real property. But what happens when an easement is granted to a particular person? What if the easement does not explicitly run with the land?

There are two types of easements: easements appurtenant and easements in gross. An easement appurtenant benefits one parcel of land by passing over or burdening another. An easement appurtenant is necessarily connected with the use or enjoyment of the benefited parcel, and it passes with the benefited property when the property is transferred. An easement appurtenant is incapable of existence separate and apart from the particular land to which it is attached. The land served or benefited by an easement appurtenant is called the dominant tenement. The land burdened by an easement appurtenant is called the servient tenement.

By contrast, an easement in gross is granted for the benefit of a particular person. An easement in gross is personal and may not be transferred except by a utility or railroad. With an easement in gross, there is no dominant tenement since the easement is not attached to any parcel of real property. Some states do not recognize easements in gross.

Back to our initial question. What if the easement in question does not clearly state whether it is appurtenant or in gross? Michigan courts strongly favor easements appurtenant over easements in gross. In fact, the Michigan Supreme Court has stated that an easement will never be presumed to be a “mere” personal right where it can fairly be construed to be appurtenant to some other estate.

In order for an easement to be in gross, the drafter must use very specific language. In fact, the only surefire way to guarantee an easement remains in gross is to include a reverter clause and/or to use the words “in gross” within the actual document. Otherwise, there’s almost always a way to argue that the easement is appurtenant.

This analysis is important to keep in mind if you would like to grant an easement to a neighbor, but don’t want the easement being transferred to the next purchaser of your neighbor’s property. Your current neighbor might be trustworthy and respectful, but the next person to buy the neighbor’s property might be a headache. It is vital to use an experienced attorney when drafting easements. Otherwise, you may end up conveying more than you bargained for.

The attorneys at Dalton & Tomich are experienced in handling easement issues. We represent individuals, companies, and organizations throughout Michigan. If you need representation regarding an easement, please do not hesitate to contact us. We would be happy to speak with you.

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