Many California property owners assume all property restrictions transfer to the new owner after a sale. You might believe that an easement, once in place, is permanent. This is a common assumption, but the reality is more complex. Whether an easement transfers depends on several factors, including its type, its recording status and whether someone has legally terminated it.
The two types of easements
In real estate law, easements are generally one of two types. Understanding this distinction is key to knowing if it will remain after a sale.
- Easement appurtenant: This type of easement attaches to the land itself and benefits another property. A common example is a recorded driveway easement that allows a neighbor to cross your land to reach theirs.
- Easement in gross: This right benefits a specific person or entity, not the property. A utility easement for a power company is a common example. A more personal example would be a right for a specific friend to fish in a private pond.
The law treats these two types of easements very differently in a property sale.
Which easement “runs with the land”?
An easement appurtenant “runs with the land.” This means it is part of the property’s title and transfers to the new owner automatically, whether or not it is mentioned in the deed.
An easement in gross is more complex. Commercial easements in gross, like those for utilities, are generally transferable and continue after a sale. Personal easements in gross, such as a friend’s right to fish, are generally not transferable.
This right is tied to the individual and is presumed to terminate upon the holder’s death, not simply because they move. This right can only be transferred or inherited if the creating document explicitly states it.
Why this distinction matters
This difference is critical for both buyers and sellers. A seller might mistakenly promise a neighbor’s right of access continues, only for the new owner to dispute it. A buyer might expect a personal easement to continue, only to discover the sale extinguished that right.
Because vague or old agreements can cause significant conflict, proactively reviewing your property’s title and any easement documents helps prevent costly litigation. An experienced attorney can provide this review to clarify your specific rights and obligations.
