Does your business or residential property share a common driveway or parking area with the property next door? Do you use the adjoining property for access to your property? Does your property connect to a stormwater drainage system located on the adjoining property? If the answer is yes to any of these questions, then your property may be benefited by an appurtenant easem*nt.
An easem*nt is the right to use someone else’s land. Easem*nts are either “appurtenant” or “in gross.” An appurtenant easem*nt benefits a specific parcel of land, known as the dominant estate. The parcel over which the easem*nt runs is called the servient estate. An appurtenant easem*nt attaches to the ownership of the dominant estate. If the dominant estate is sold, the appurtenant easem*nt will pass to the new owner, and if the servient estate is sold, it will remain subject to the easem*nt. By contrast, an easem*nt in gross is a mere personal right and generally does not pass on. Utility easem*nts are usually easem*nts in gross.
Why are Appurtenant Easem*nts Valuable?
Appurtenant easem*nts often provide a cost-effective means for developing or enhancing the use of the dominant estate. For example, in new construction, the natural topography of the land may cause stormwater runoff to drain from the dominant estate to the servient estate. It may cost significantly less to hook up to the existing stormwater drainage system located on the servient estate than to construct an independent storm sewer connection from the dominant estate into the municipality’s storm sewer lines. The owner of the servient estate may be willing to grant an easem*nt to mitigate the rate of release of excess stormwater runoff from the dominant estate onto the servient estate which otherwise occurs naturally.
Appurtenant easem*nts can also be valuable to a developer of real estate to split its operation of multiple parcels like apartment complexes which are operated as one large project. In this case, the developer creates the necessary appurtenant easem*nts on the applicable parcels for access, drainage, signage, landscaping, etc., which then enables it to sell the parcels separately.
Creating an Appurtenant Easem*nt.
Appurtenant easem*nts are created in an easem*nt agreement, deed or recorded declaration affecting large residential and commercial subdivisions. Some basic considerations in drafting an easem*nt agreement are:
Title Search. A title search should be run on the servient estate to confirm ownership and any existing mortgages. The owner and all existing mortgagees must consent to the easem*nt. The mortgagees must agree to subordinate their mortgages to the easem*nt agreement so the easem*nt cannot later be extinguished if there should be a foreclosure.
Purpose. The easem*nt agreement should clearly define the specific purpose of the easem*nt.
Term. Will the easem*nt be perpetual or for a specified time limit?
Consideration. The agreement should identify the monetary payment or other consideration for the easem*nt grant.
Nature. Will the easem*nt be exclusive or non-exclusive to the grantee? Will the easem*nt be revocable or irrevocable?
Construction/Maintenance. If the easem*nt will require construction work such as a roadway, storm sewer and/or drainage pipes, the agreement should specify who will perform the work and at what cost allocation between the parties. Maintenance obligations should be clearlyspelled out in the agreement with cure rights in favor of the other party if the obligated party fails to perform.
Indemnification/Insurance. The grantee should indemnify the grantor for any claims, losses and expenses attributable to physical damage or personal injury associated with grantee’s use of the easem*nt area. If the grantee will perform any work on the servient estate, the grantee should be required to have appropriate insurance insuring the grantor as an additional insured.
Costs. The agreement should specify any fees to be paid by the grantee such as a portion of real estate taxes or maintenance costs.
Estoppel Certificates. The easem*nt agreement should provide for an agreed form of estoppel certificate and require each party to provide such a document when requested by the other. The easem*nt agreement should state that if the estoppel certificate is not provided then the party is deemed to have agreed that the easem*nt agreement is in full force and effect and that the other party is in full compliance with all of its obligations. A potential buyer or mortgage lender will often require an estoppel certificate from the grantor of an appurtenant easem*nt confirming its validity.
Title Insurance. The grantee of an appurtenant easem*nt should be certain that his owner’s title insurance policy, which insures his ownership of the dominant estate, also insures the grantee’s rights in the appurtenant easem*nt as an easem*nt for the benefit of the dominant estate
FAQs
As the Supreme Court of New Jersey notes in Village of Ridgewood v. Bolger Foundation (1986), an appurtenant easem*nt increases the value of the dominant estate and cannot exist separate from it.
What is the easem*nt appurtenant usually defined as? ›
An easem*nt appurtenant refers to a right for a non-owner to access and use some part of a property owned by someone else for a specific purpose. An easem*nt appurtenant is a specific class of easem*nts that is attached to the property and is transferrable with the property.
Which is true regarding an easem*nt appurtenant? ›
The accurate statement regarding easem*nts appurtenant is that they are attached to the land and transfer with the land's ownership, making option C the correct answer.
What is an example of an appurtenant right? ›
Property Rights
Examples of appurtenances include in-ground swimming pools, a fence, or shed that are all fixed to the land. Appurtenances include rights to natural resources found in the land, such as minerals or oil, as well as improvements to the property and easem*nts.
What is meant by appurtenant rights? ›
A right which attaches to and benefits an estate in land (the dominant tenement) which once validly created (and subject to registration requirements) will benefit subsequent owners of the dominant tenement without the need for express assignment of the right.
What must exist for an appurtenant easem*nt to exist? ›
An easem*nt appurtenant involves two parcels of land: the dominant tenement, which benefits from the easem*nt, and the servient tenement, which grants the easem*nt rights. These two distinct parcels are essential for the existence of an easem*nt appurtenant.
What is the dominant estate in an easem*nt? ›
Dominant estate (also called dominant tenement) refers to the property that uses an easem*nt over another property. For example, if lot A had an easem*nt over lot B to access the highway, lot A would be the dominant estate. [Last updated in July of 2021 by the Wex Definitions Team] PROPERTY. neighbors & neighborhoods.
Which of the following would be considered appurtenant to real property? ›
Appurtenant easem*nts can include the right to use shared driveways or common areas like parks or swimming pools in a housing community. These easem*nts are typically recorded in the property deed and can impact the property's value.
Which of the following would be the best definition of an appurtenance? ›
The term appurtenance refers to the attachment of a right or property to a more worthy principal. Put simply, appurtenance means that something legally belongs to another, larger, more valuable entity.
Which is a characteristic of an appurtenant easem*nt quizlet? ›
Which is a characteristic of an appurtenant easem*nt? A. RUNS WITH THE LAND. An appurtenant easem*nt is said to "run with the land," in that it is binding not only on the current owner but also on future owners.
We define property rights as a right to specific property, whether intangible or tangible. In many cases, property rights are clear. If you own a car and have a title to that car in your name, then the property rights to drive, sell, lend, lease, or scrap that car belong to you.
Is a fence an appurtenant structure? ›
Examples of appurtenances include driveways, garages, trees, central air conditioning units, fences, in-ground swimming pools, furnaces, and external structures like a shed. Natural resources found on the property, including minerals and water, can also qualify as appurtenances.
What is the meaning of the word appurtenant? ›
: constituting a legal accompaniment. 2. : auxiliary, accessory. appurtenant equipment. appurtenant noun.
What are the benefits of an easem*nt appurtenant? ›
Easem*nt Appurtenant refers to a legal right linked to owning a specific piece of land. It serves to benefit that land by granting access or usage over an adjacent property, known as the servient estate. This type of easem*nt is inherently tied to the land's ownership and typically involves two adjoining properties.
What is a characteristic of an appurtenant easem*nt? ›
What Is The Major Feature Of An Appurtenant Easem*nt? The major feature of this type of easem*nt is the fact that it is held by the owner in his or her role as dominant tenement. If the dominant tenement is transferred or sold, the easem*nt is instantly transferred with the land.
What is the difference between an easem*nt and an appurtenance? ›
An easem*nt is the right to use another person's property for a specific and limited purpose. An easem*nt appurtenant is a specific type of easem*nt where two properties are linked together as servient tenement and dominant tenement estates.
What is an easem*nt appurtenant Quizlet? ›
An easem*nt appurtenant benefits the holder in his physical use or enjoyment of another tract of land. There must be two tracts: the dominant and servant. An easem*nt appurtenant automatically passes with the transfer.
What is considered an appurtenant structure? ›
Appurtenant Structures. Structures that are also on the property covered by an insurance policy. Examples might be a storage shed or barn. Most property policies have a limit they will pay for other structures based on a percentage of the main building's value.
Which of the following is an example of an easem*nt? ›
A common example of an easem*nt is when one person is given the right to cross or access a road across another person's property. Other common examples of easem*nts are phone, gas, and power lines. In addition, sewage and water pipes are also common types of easem*nts that are installed on private property.
