Easement Agreement Drafting, Appurtenant and In-Gross

An easement agreement is a legal document that grants a non-possessory right to use another party’s land for a specific purpose without transferring ownership. The agreement identifies the dominant tenement (the property benefiting from the easement) and the servient tenement (the property burdened by the easement), defines the scope and location of the permitted use, and establishes the rights and obligations of both parties. Common examples include right of way easements for driveway access, utility easements for power lines or water pipes, and conservation easements restricting development. An easement must be recorded with the county recorder to provide constructive notice to subsequent purchasers and protect the easement holder’s rights. Legal Tank offers professional easement agreement drafting starting at $49 through our AI-Assisted tier or $149 to $299 for attorney-drafted agreements with state-specific compliance.

An easement appurtenant benefits a neighboring property (the dominant tenement) and transfers automatically with the land when the property is sold. The easement is said to “run with the land,” meaning it binds all future owners of the servient tenement and benefits all future owners of the dominant tenement. A shared driveway easement between two adjacent lots is a common example. An easement in gross, by contrast, benefits a specific person or entity rather than a neighboring property. Utility company easements are the most common example: the power company holds the right to run transmission lines across private property regardless of who owns the adjacent parcels. An easement in gross is typically non-transferable unless it is a commercial easement in gross, which most states allow to be assigned. Legal Tank’s attorney-drafted easement agreements ($149 to $299) clearly specify whether the easement is appurtenant or in gross to prevent future disputes about transferability.

The duration of an easement depends on how it was created and the terms specified in the easement agreement. A perpetual easement has no expiration date and continues indefinitely, binding all future owners of the servient tenement. Most easement appurtenant agreements are perpetual because they are intended to serve the dominant tenement regardless of ownership changes. A term easement lasts for a specified number of years and automatically expires at the end of the term. Construction access easements and temporary utility easements are commonly drafted as term easements. Courts may terminate an easement for abandonment (when the easement holder stops using it and demonstrates intent to relinquish the right), merger (when one party acquires both the dominant and servient parcels), or by express release signed by the easement holder. Legal Tank’s easement agreements include clear duration provisions and termination conditions to avoid ambiguity.

The owner of the servient tenement generally retains the right to use and build on their property, but they cannot construct anything that unreasonably interferes with the easement holder’s rights. If the easement agreement defines a specific easement corridor or area, the servient landowner cannot build structures within that designated area. For example, if a right of way easement grants a 20-foot access corridor across your property, you cannot build a fence, garage, or retaining wall within those 20 feet. Outside the easement area, you can build freely unless the construction would effectively block access or undermine the easement’s purpose. Utility easements typically prohibit planting deep-rooted trees or constructing permanent structures over buried lines. Legal Tank’s easement agreements define the easement boundaries with specificity so both parties understand exactly what construction is and is not permitted on the servient tenement.

Easements affecting your property are disclosed through several sources. First, a title search conducted by a title company or attorney examines the chain of title at the county recorder’s office and identifies all recorded easements, including utility easements, access easements, and conservation easements. Second, your property’s deed may reference specific easements in the legal description or as exceptions to the title conveyed. Third, a property survey prepared by a licensed surveyor visually identifies the location of easement corridors on your lot. Fourth, your title insurance policy’s Schedule B lists all known encumbrances including easements. Fifth, your county assessor’s or recorder’s online portal may show recorded easement documents. Keep in mind that prescriptive easements and implied easements may not appear in recorded documents because they arise through use or circumstance rather than a written agreement. Legal Tank’s attorney-reviewed easement service includes a review of existing easement documents when drafting new agreements.

An easement can be terminated through several legal mechanisms. First, express release occurs when the easement holder voluntarily signs a recorded document relinquishing the easement right. Second, merger terminates the easement when one party acquires both the dominant and servient parcels, because a person cannot hold an easement on their own land. Third, abandonment requires the easement holder to demonstrate both non-use and an affirmative intent to abandon the right; mere non-use alone is usually insufficient. Fourth, expiration applies to term easements that automatically end on a specified date. Fifth, condemnation occurs when the government exercises eminent domain over the servient property. Sixth, courts may terminate an easement if circumstances have changed so dramatically that the easement can no longer serve its original purpose. The process for removing an easement typically requires either a signed release recorded with the county recorder or a court order through a quiet title action. Legal Tank’s easement agreements include clear termination provisions covering each applicable method.

Unless the easement agreement specifies otherwise, the general rule is that the easement holder (the party benefiting from the easement) is responsible for maintaining the easement area. For a right of way easement, the dominant tenement owner must maintain the driveway or road surface, clear snow, and repair damage. For a utility easement, the utility company must maintain its infrastructure and restore the land after any work. The servient tenement owner is prohibited from interfering with the easement but is not required to maintain it unless the agreement imposes that obligation. Many well-drafted easement agreements allocate maintenance responsibilities explicitly, including cost-sharing arrangements for shared driveways or private roads serving multiple parcels. Legal Tank’s easement agreement drafting service includes detailed maintenance provisions that specify each party’s obligations, cost allocation, and dispute resolution procedures for maintenance disagreements.

Whether an easement transfers with a property sale depends on the type of easement. An easement appurtenant automatically transfers with the land when either the dominant or servient tenement is sold. The new owner of the dominant tenement inherits the right to use the easement, and the new owner of the servient tenement takes the property subject to the existing easement burden. This automatic transfer occurs because an easement appurtenant “runs with the land” and is tied to the property rather than to any individual owner. An easement in gross, however, benefits a specific person or entity rather than a neighboring property. Personal easements in gross typically terminate when the holder dies or dissolves. Commercial easements in gross (such as utility company easements) can usually be transferred or assigned. To ensure transferability and enforceability against future owners, every easement must be recorded with the county recorder to provide constructive notice. Legal Tank’s easement agreements clearly state whether the easement runs with the land and include proper recording instructions.