Appurtenant or in Gross: Does the Easement Run?

This is the second episode in our new video series covering easements. The prior episode introduces the tenement relationship between two parcels of real estate created by an easement.

This episode covers appurtenant easements which run with the land and easements in gross which belong to an individual or entity, plus conservation and solar easements.

Classification of easements

An easement burdening an owner’s property as an encumbrance on title to that property is classified as either:

an appurtenant easement, since the use allowed belongs to and benefits an adjacent property and runs with the land as a property interest held in the burdened real estate; or
an easement in gross, which belongs to an individual, not another parcel of real estate, as their personal right in the burdened real estate.

For example, a development company sells parcels in a subdivision, reserving a right-of-way easement over each of the parcels. The deed creating the easement does not state the easement is appurtenant to other parcels.

Later, the successor to the developer attempts to build a road on the easement. The owners of the burdened property claim the easement is in gross, a benefit held only by the original developer.

Is the easement in gross (personal) since the grant deed does not specify the easement is appurtenant?

No! When the document creating an easement does not indicate whether the easement is appurtenant or in gross, the easement is classified as appurtenant if it benefits a property other than the burdened property. [Elliot v. McCombs (1941) 17 C2d 23]

Runs with title to the benefitting property

An appurtenant easement is incidental to the title of the property which benefits from its use. However, an easement is not reflected as a recorded interest on the title to the parcel of real estate it benefits. Nor is it a personal right held by a particular individual who may now or have previously owned the parcel benefitting from the easement.

Conversely, an appurtenant easement benefitting one parcel is recorded as an encumbrance on title to the burdened property. The easement remains on the burdened property’s title after a conveyance to new owners of either the benefitting or burdened property. To be enforceable by a new owner of the benefitting property, the easement does not need to be referenced in the grant deed conveying either property to new owners since it runs with the land. [Moylan v. Dykes (1986) 181 CA3d 561]

Conversely, an easement in gross benefits a particular person – not any real estate the person might own. An easement in gross is personally held only by the individual who may use the easement. No parcel of real estate may benefit from an easement in gross since only the individual holding the easement may benefit.

For example, an easement held by a public utility company is an easement in gross. The utility company has the right to enter onto a property to install and maintain its equipment (power lines, gas or water pipes, etc.). In no way does any real estate owned by the utility company benefit from the easement.

While an easement in gross is a personal right which is not transferred with the sale of any real estate owned by the holder of the easement, the right may be transferred by the easement holder to another person by a writing — unless the transfer of the easement in gross is prohibited by a provision in the document creating the easement. [LeDeit v. Ehlert (1962) 205 CA2d 154]

Easements for light, air or view

A property owner has no automatic right, and may not acquire a prescriptive right, to air, light or an unaltered view over neighboring properties.

However, a property owner may enforce an easement created by a grant which restricts a neighbor’s ability to erect or maintain any improvement which interferes with the owner’s right to air, light or view. The easement might be the result of covenants, conditions and restrictions (CC&Rs) which blanket several properties with use restrictions, such as restrictions on the height of improvements.

Consider a seller who conveys one of several parcels of real estate they own to a buyer – before the invention of television. The seller retains ownership of an adjoining parcel improved with an apartment complex. The seller, by a provision in the grant deed conveying the parcel, reserves an easement for light, air and an unobstructed view over the parcel conveyed to the buyer.

Later, the buyer of the burdened property erects a television antenna. The seller, as the owner of the adjacent apartment complex, demands the buyer remove the antenna, claiming the antenna interferes with the unobstructed view easement the seller reserved.

The buyer claims the seller did not intend to preclude the use of a television antenna since the easement was created before the invention of television.

Is the buyer obligated to remove the antenna from the space established as a view easement?

Yes! The easement precludes the buyer of the burdened property from erecting or maintaining any type of improvement obstructing the seller’s (the apartment complex owner’s) right to light, air or view. [Petersen v. Friedman (1958) 162 CA2d 245]

Easements for light, air and view can only be established by written agreement between neighboring owners, not by implication or prescription. [Petersen, supra]

Solar easements and shady neighbors

A relatively recent type of easement is the solar easement. Solar easements were established with the intent of encouraging the productive use of solar energy systems as a matter of public policy. [See RPI Form 322]

A solar easement granted in a written instrument needs to state:

the measured angles by which sunlight has to pass;
the hours of the day during which the easement is effective;
the limitations on any object which impairs the passage of sunlight through the easement; and
the terms for terminating or revising the easement. [ Civil Code §801.5]

Solar easements are similar to easements of light, air or view since they restrict an adjacent property owner’s ability to maintain any improvements interfering with a neighbor’s solar energy system.

Consider a recorded restrictive covenant which limits the height of improvements on parcels within a housing development. A property owner’s tree exceeds the height limitation and a neighbor successfully enforces the restrictive covenant requiring the owner to maintain the tree below the designated height.

In this instance, when the neighbor installs a solar collector on their property, they receive an incidental benefit from the height restriction since it limits the height of improvements on other parcels which hinder the passage of sunlight to their solar collector. [Ezer v. Fuchsloch (1979) 99 CA3d 849]

Also, a neighboring property owner who installs an active solar collector is, by their conduct, granted a solar easement across adjacent properties under the Solar Shade Control Act without the need for a writing. The adjacent property owner may not later plant and maintain trees or shrubs which between 10 a.m. and 2 p.m. (standard time) shade an active solar collector previously installed by a neighboring property owner. [Calif. Public Resources Code §25982]

For easements created on an owner’s property by a neighbor’s conduct under the Solar Shade Control Act, trees or shrubs growing on the owner’s property prior to the neighbor’s installation of a solar collector may remain and are not subject to height restrictions. They were in place before the neighbor’s solar collector was installed. Thus, no height limit on preexisting trees or shrubs exist, unless established by a recorded height restriction on improvements. [Pub Res C §§25980 et seq.]

Additionally, when a tree or shrub has been growing before a neighbor installs an active solar collector, the owner of the property containing the tree or shrub may replace it if it dies after the solar collector is installed. [Pub Res C §25984]

Conservation easements

A conservation easement is a voluntary conveyance of the right to keep the land in its natural, scenic, historical, agricultural, forested or open-space condition. It is conveyed by an owner of real estate to a conservation organization or government agency. A conservation easement is created in the form of an easement or CC&R, by use of a deed, will or other instrument to convey the easement. [CC §815.1]

Conservation easements are perpetual in duration and thus are binding on all successive owners of the property burdened by the conservation easement. [CC §§815.1, 815.2(b)]

Conservation easements may only be granted to organizations established to acquire and hold a conservation easement, such as:

a tax-exempt, nonprofit organization qualified to do business in the State of California whose primary purpose is to preserve, protect or enhance land in its natural, scenic, historical, agricultural, forested or open-space condition or use;
a state or a governmental entity authorized to acquire and hold title to real estate, as long as the conservation easement is voluntarily conveyed; and
a federally recognized California Native American tribe or a non-federally recognized California Native American tribe on the contact list of the Native American Heritage Commission. [CC §815.3]

Consider a conservation easement recorded by the California Coastal Commission (Commission) on a parcel of real estate in an environmentally sensitive area. The owner of the parcel later builds a highly visible three-hole golf course on the property without notifying the Commission, violating the conservation easement.

Twenty years later, the owner sells the property to a buyer without disclosing the existence of the conservation easement. The title insurance company also does not reveal the easement to the buyer.

On discovering the existence of the golf course on the property protected by the conservation easement, the Commission orders the buyer to return the property to its natural state. The buyer refuses, claiming the Commission is prohibited, or estopped, from enforcing the easement since the Commission failed to act on the long-standing violation when the prior owner built the golf course, leading the buyer to believe no violation existed. The Commission claims it is not estopped from enforcing the conservation easement since its inaction was based on the belief the parcel was in compliance.

Can the buyer be forced to comply with the conservation easement even though they were not actually aware of its existence?

Yes! The Commission’s inaction was based on the belief the parcel was in compliance with the easement, not an intent to mislead the buyer. Additionally, the public interest in the recorded and registered conservation easement supersedes the buyer’s right to maintain a golf course on their property. [Feduniak v. California Coastal Commission (March 27, 2007) 148 CA4th 1346]

Editor’s note — The title insurance company and the prior owner may be liable to the buyer for the loss of value caused by the undisclosed easement.