NCBE MBE

## Learning Outcomes

This article explains the nature and types of easements, including:

- The definition of an easement as a nonpossessory interest in land and how it differs from possessory estates, licenses, and profits.
- The distinction between affirmative easements (permitting use of the servient estate) and negative easements (restricting what the servient owner may do), and the traditional LASS categories limiting negative easements at common law.
- The difference between easements appurtenant (benefiting a dominant estate and running with the land) and easements in gross (benefiting a person or entity without a dominant parcel).
- How to identify the dominant and servient estates from grant language and determine whether an easement is appurtenant or in gross.
- The transferability rules for each type: appurtenant easements passing automatically with the dominant estate, and easements in gross being transferable only if commercial.
- How the burden of an easement binds successors to the servient estate, subject to notice requirements under the recording acts.
- Modern expansions of negative easements, including conservation easements, solar easements, and scenic view easements in some jurisdictions.
- Practical strategies for classifying easements on MBE-style questions and avoiding common misclassifications.

## MBE Syllabus

For the MBE, you are required to understand the nature and classification of easements, with a focus on the following syllabus points:

- The definition of an easement as a nonpossessory right to use another's land.
- The distinction between affirmative and negative easements, including the traditional categories where negative easements are recognized.
- The difference between easements appurtenant and easements in gross.
- Identification of the dominant and servient estates in easement appurtenant situations.
- The transferability of easements: how appurtenant easements run with the land and how easements in gross transfer (or do not transfer) depending on whether they are commercial or personal.
- How the burden of an easement passes to successors of the servient estate.
- Modern developments in negative easements, such as conservation and solar easements.

## Test Your Knowledge

_Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, look more closely at that area during your revision._

1. Which of the following best describes an easement?
   a) A possessory interest in land
   b) A nonpossessory right to use another's land for a specific purpose
   c) A license to enter land that is revocable at will
   d) A lease granting exclusive possession for a term

2. O grants "to A the right to cross Blackacre to reach A's adjoining parcel." What type of easement is created?
   a) Easement in gross
   b) Negative easement
   c) Easement appurtenant
   d) License

3. At common law, negative easements are limited to which four categories?
   a) Light, air, support, and stream water (LASS)
   b) Access, parking, utilities, and drainage
   c) View, noise, smell, and vibration
   d) Ingress, egress, parking, and storage

4. A utility company holds an easement to run power lines across private property. This is most likely:
   a) An easement appurtenant
   b) A personal easement in gross
   c) A commercial easement in gross
   d) A negative easement

5. True or false? An easement appurtenant automatically transfers with the dominant estate, even if not mentioned in the deed.

## Introduction

An easement is one of the most frequently tested property concepts on the MBE. Understanding what easements are, how they are classified, and how they transfer is essential for answering questions involving rights in real property.

> **Key Term: Easement**
> A nonpossessory interest in land that entitles its holder to use or restrict the use of another person's land.

Unlike a fee simple or leasehold, an easement does not grant the holder possession of the land. Instead, it grants a limited right either to use the land (affirmative easement) or to prevent the landowner from using the land in certain ways (negative easement).

> **Key Term: Servient estate**
> The parcel of land that is burdened by an easement.
> **Key Term: Dominant estate**
> The parcel of land that benefits from an easement appurtenant.

Easements are interests in land, meaning they are subject to the Statute of Frauds (requiring a signed writing for creation, with limited exceptions) and can run with the land to bind and benefit successors.

### Affirmative and Negative Easements

The first classification divides easements by what they allow or prohibit.

### Affirmative Easements

> **Key Term: Affirmative easement**
> An easement that permits the holder to enter and use the servient estate in some manner.

Most easements are affirmative. Common examples include:

- A right of way to cross the servient land
- A utility easement to install and maintain power lines, pipelines, or cables
- A drainage easement to channel water across the servient parcel
- An easement for parking or storage

The holder of an affirmative easement may physically enter the servient estate and use it for the permitted purpose. The servient owner retains possession but must allow the easement holder's use.

### Negative Easements

> **Key Term: Negative easement**
> An easement that restricts what the servient owner may do on the servient land, without permitting the easement holder to enter.

A negative easement does not allow entry onto the servient land. Instead, it gives the holder the right to prevent the servient owner from engaging in conduct that would otherwise be lawful.

At common law, negative easements are recognized only in four traditional categories, remembered by the acronym **LASS**:

- **L**ight: preventing the servient owner from blocking light to the dominant estate
- **A**ir: preventing interference with airflow to the dominant estate
- **S**upport: preventing excavation or construction that would remove lateral or subjacent support from the dominant estate
- **S**tream water: preventing interference with the flow of water in an artificial stream

> **Exam Tip:**
> At common law, negative easements can only be created expressly by a signed writing. They cannot be acquired by implication, necessity, or prescription. If a question involves a claim to a negative easement by prescription, treat it with skepticism.

### Modern Expansions of Negative Easements

Some jurisdictions have expanded the categories of recognized negative easements to include:

- **Conservation easements:** restricting development to preserve natural, scenic, or historic features
- **Solar easements:** preventing construction that would block sunlight to solar panels
- **Scenic view easements:** preventing obstruction of views (recognized in a minority of states)

On the MBE, unless the question specifically indicates a modern statute applies, assume the traditional LASS limitations govern negative easements.

### Easement Appurtenant and Easement in Gross

The second classification distinguishes easements by whether they benefit land or a person.

### Easement Appurtenant

> **Key Term: Easement appurtenant**
> An easement that benefits a particular parcel of land (the dominant estate) and automatically passes with that land to successive owners.

An easement appurtenant requires two parcels of land:

- The **dominant estate** receives the benefit of the easement
- The **servient estate** bears the burden of the easement

The classic example is a right of way: O grants A the right to cross O's land (the servient estate) to reach A's adjacent parcel (the dominant estate).

Identifying an easement appurtenant:

- Look for language connecting the easement to a specific parcel: "to reach Grantee's land," "for the benefit of Lot 2," "as access to Grantee's residence"
- If the easement makes sense only in connection with ownership of nearby land, it is likely appurtenant
- When language is ambiguous, courts presume an easement is appurtenant if a dominant estate can reasonably be identified

Transfer of easements appurtenant:

The benefit of an easement appurtenant runs with the dominant estate automatically, even if not mentioned in a subsequent deed. When A sells the dominant estate to B, B acquires the easement along with the land.

The burden of an easement appurtenant runs with the servient estate and binds successive owners, provided the new owner has notice (actual, constructive, or inquiry notice). A bona fide purchaser of the servient estate without notice may take free of an unrecorded easement.

### Easement in Gross

> **Key Term: Easement in gross**
> An easement that benefits a person or entity rather than a parcel of land. There is no dominant estate.

An easement in gross has only a servient estate. The benefit is personal to the holder rather than attached to land.

Examples include:

- A utility company's easement to run power lines across private property
- A railroad's right of way across multiple parcels
- A personal right granted to an individual to fish in a pond or hunt on land

Identifying an easement in gross:

- The grant benefits a named person or entity without reference to benefited land
- The easement holder does not own adjacent land that would logically be benefited
- Language such as "to A personally" or "to XYZ Corporation" without connecting the benefit to a parcel

Transfer of easements in gross:

The transferability of easements in gross depends on whether they are commercial or personal:

- **Commercial easements in gross** (utility easements, railroad rights of way, pipeline easements) are generally transferable and may be subdivided or apportioned among multiple parties, provided the cumulative use does not unreasonably burden the servient estate.

- **Personal easements in gross** (a right to fish, swim, or hunt granted to an individual) are generally not transferable. They terminate on the death of the holder unless the grant clearly makes them assignable.

> **Exam Tip:**
> On the MBE, utility and railroad easements are classic commercial easements in gross. A personal privilege like "to A the right to swim in my pond" is a personal easement in gross that typically cannot be transferred.

### Comparing Easement Types

![Grant language classification of present estates and related future interests based on duration terms, conditional wording, and third-party takers.](https://static.pastpaperhero.com/images/ncbe-mbe-rights-in-real-property-easements-nature-and-type_00.png)

_Present estate identification from deed language distinguishes life estates, leaseholds, fee simple, and defeasible fees with remainders or reversions._

| Feature                          | Easement Appurtenant      | Easement in Gross        |
| -------------------------------- | ------------------------- | ------------------------ |
| Dominant estate                  | Yes                       | No                       |
| Servient estate                  | Yes                       | Yes                      |
| Benefit attached to              | Land (dominant estate)    | Person or entity         |
| Transfers with dominant estate   | Automatically             | N/A (no dominant estate) |
| Transferable by holder           | Passes with dominant land | Only if commercial       |
| Burden runs with servient estate | Yes (with notice)         | Yes (with notice)        |

### Maintenance and Scope

The holder of an easement has both a duty and a right to maintain the easement. If the easement is a right of way, the easement holder may enter the servient estate to repair and maintain the path. If both the dominant and servient owners use the easement area, both share responsibility for maintenance.

The scope of an easement is determined by the terms of the grant or the circumstances of its creation. Courts interpret easements to meet present and reasonably foreseeable future needs of the dominant estate. However, if the dominant estate is subdivided, the easement may be limited if allowing all lot owners to use it would unreasonably overburden the servient estate.

> **Exam Tip:**
> Overuse or misuse of an easement does not terminate it. The servient owner's remedy is an injunction against the excessive use, not extinguishment of the easement.

### Worked Example 2.1

O owns two adjacent parcels, Lot A and Lot B. O conveys Lot B to X with a deed stating: "Together with a right of way over the eastern ten feet of Lot A for ingress and egress." X later sells Lot B to Y. Does Y have the right to use the easement?

> **Answer:**
> Yes. The easement is appurtenant because it benefits Lot B (the dominant estate) and burdens Lot A (the servient estate). Easements appurtenant run automatically with the dominant estate. When X sold Lot B to Y, the easement passed with the land, even if not mentioned in the deed from X to Y.

### Worked Example 2.2

Power Company obtains a written easement from Landowner "to install, maintain, and repair electric transmission lines across Blackacre." Power Company later assigns this easement to Energy Corp. Landowner objects, claiming the easement was personal to Power Company.

> **Answer:**
> The easement is a commercial easement in gross. It benefits Power Company as a business entity rather than any dominant parcel. Commercial easements in gross are generally transferable. Power Company may assign the easement to Energy Corp, and Landowner cannot prevent the transfer unless the original grant expressly prohibited assignment.

### Worked Example 2.3

O grants "to my friend B the right to fish in my pond for as long as B lives." B attempts to sell this right to C.

> **Answer:**
> This is a personal easement in gross. It benefits B personally, not any parcel of land B owns. Personal easements in gross are not transferable unless the grant expressly permits assignment. B cannot transfer the fishing right to C. The easement will terminate on B's death.

### Worked Example 2.4

A owns a home with large windows facing B's vacant lot. A claims a negative easement preventing B from building a structure that would block A's light. A has not obtained any written agreement from B.

> **Answer:**
> At common law, light is one of the four traditional LASS categories for negative easements. However, negative easements can only be created by express written grant. A cannot claim a negative easement by implication or prescription. Without a signed writing from B granting the easement, A has no enforceable negative easement. B may build on the vacant lot.

### Worked Example 2.5

Developer grants Neighbor "an easement of view across Lot 5 to preserve Neighbor's ocean view." The jurisdiction follows traditional common law rules for easements. Neighbor records the easement. Years later, Developer sells Lot 5 to Buyer, who plans to build a three-story house that would block the view.

> **Answer:**
> This is a negative easement for view. Under traditional common law, view easements are not among the recognized LASS categories. In a jurisdiction following traditional rules, the easement may be unenforceable. However, if the jurisdiction has adopted modern rules recognizing scenic view easements, the recorded easement would bind Buyer (who has constructive notice). The outcome depends on the applicable law, which the MBE will typically indicate.

## Summary

Easements are nonpossessory interests in land that grant the holder either the right to use another's land (affirmative) or the right to restrict what the landowner may do (negative).

**Affirmative easements** are the most common type and permit entry onto the servient estate for purposes such as access, utilities, or drainage.

**Negative easements** do not allow entry but restrict the servient owner's conduct. At common law, they are limited to the four LASS categories: light, air, support, and stream water. Negative easements can only be created by express written grant, never by implication or prescription. Modern statutes have expanded negative easements in some jurisdictions to include conservation, solar, and view easements.

**Easements appurtenant** benefit a dominant estate and burden a servient estate. The benefit runs automatically with the dominant land; the burden runs with the servient land (with notice). Courts presume an easement is appurtenant when a dominant estate can be identified.

**Easements in gross** benefit a person or entity rather than land. Commercial easements in gross (utilities, railroads) are transferable. Personal easements in gross (fishing, swimming privileges) are generally not transferable and terminate on the holder's death.

Understanding these classifications is essential for analyzing MBE questions involving creation, transfer, and enforcement of easements.

## Key Point Checklist

_This article has covered the following key knowledge points:_

- An easement is a nonpossessory interest in land, distinct from possessory estates, licenses, and profits.
- Affirmative easements permit the holder to use the servient estate; negative easements restrict what the servient owner may do without permitting entry.
- At common law, negative easements are limited to LASS: light, air, support, and stream water. They must be created by express written grant.
- Modern jurisdictions may recognize additional negative easements such as conservation, solar, and view easements.
- Easements appurtenant benefit a dominant estate and burden a servient estate; the benefit and burden run with the respective parcels.
- Easements in gross benefit a person or entity without a dominant estate; commercial easements in gross are transferable, but personal ones are not.
- When grant language is ambiguous, courts presume an easement is appurtenant if a dominant estate can reasonably be identified.
- The holder of an easement has the right and duty to maintain it; overuse does not terminate an easement but may be enjoined.
- Bona fide purchasers of the servient estate without notice may take free of unrecorded easements.

## Key Terms and Concepts

- Easement
- Nonpossessory interest
- Servient estate
- Dominant estate
- Affirmative easement
- Negative easement
- LASS (light, air, support, stream water)
- Conservation easement
- Solar easement
- Easement appurtenant
- Easement in gross
- Commercial easement in gross
- Personal easement in gross
- Running with the land
- Notice (actual, constructive, inquiry)


Rights in real property - Easements: nature and type