Dominant and Servient Estates

An easement gives its holder a nonpossessory interest in someone else's real property. In other words, it is an interest in real property that allows the easement holder to use the land in a particular way, but it does not typically allow the easement holder to exclude others from the land or occupy the land. For prospective homeowners, easements are an important consideration when negotiating for a purchase price and determining the scope of title. Sometimes an easement is appurtenant to land, which means that it benefits a particular parcel of land. By contrast, an easement is considered to be "in gross" when it benefits an individual personally, rather than a particular parcel of land. The land that is burdened by an easement is known as the servient estate, and the land that is benefited is the dominant estate. If you are considering buying a home, and issues of dominant and servient estates might arise, the Boston real estate lawyers at Pulgini & Norton may be able to help you negotiate the deal and better understand which obligations are being incurred.

Easements, particularly those that run with the land, are often created by a written document that meets the same formalities as any creation of interest in land. Easements are often affirmative in that they allow the holder to use someone else's land. However, there are also negative easements that allow the holder to preserve his or her access to sunlight or another aspect of the property by limiting what can be done on someone else's nearby property. It is crucial with this type of easement to know whether it runs with the land. A dominant easement in this case may have the ability to stop the servient estate from remodeling or constructing an addition to structures on the property that block a view to water or installing plants that block light.

Generally, easement holders are entitled to do whatever is reasonably convenient in order to fully enjoy the purpose of the easement, but only as long as it does not put an unreasonable burden on the servient estate. Similarly, the owner of the servient estate can use the land in any way that does not unduly hinder the dominant estate's use of the easement. What is considered an undue hindrance depends on the situation. For example, in the case of an access easement, changing a dominant estate from a residence to a commercial business could unreasonably increase the amount of traffic.

The value and use of both the dominant estate and the servient estate may depend on the existence of an easement. For example, when you buy a servient estate, it is crucial to know whether a neighbor has an easement for beach access. If the only path to the beach is by the house, the existence of the easement may decrease your privacy or restrict your ability to remodel. This could affect what you pay for the house.

It is also important to determine whether the easement is transferable when you are buying a dominant or servient estate. Usually, an easement that is appurtenant to property transfers with the dominant estate, unless the document creating the easement expressly provides that the easement will not pass with the land. Easements in gross are usually not transferable.

Our experienced Boston real estate attorneys can help you understand the scope and durability of any easements associated with a property that you are buying or selling, whether the real estate in question is a dominant or servient estate. Our firm also advises and represents buyers, sellers, and lenders in Waltham, Newton, Andover, and other cities in Massachusetts. Call us at 781-843-2200 or contact us via our online form for a free consultation with an easement attorney.