Our neighbor who has easement rights to his property located behind our home will be selling his property soon. Do we have any say as to who gets the easement?

There are several different types of easements and the answer to whether the easement will transfer with land that is sold depends both on the kind of easement in place and the laws in the state where you live.

Understanding Easements

Easements are broadly categorized as "easements appurtenant" versus "easements in gross." If the easement is considered "appurtenant," then it is sometimes said to "run with the land." In other words, that means the easement stays with or belongs to the land. When a new owner buys the property, the new owner owns that easement. An easement in gross, on the other hand, is more of a "personal" easement and one that doesn't go with the land.

Determining Type of Easement

Determining whether your easement is appurtenant or in gross involves looking at how the easement was created and what type of easement it was. For example, easements can be labeled as express or implied. Essentially, this means:

• If you have an express easement, you may have a clear written agreement that your neighbor has an easement behind your land, and this easement may be recorded and be part of the land deed.
• But if you have an implied easement, you may have simply always allowed your neighbor to use the land and intended that s/he be able to use it. In this case, an easement will have existed without necessarily being in writing.

If you have an express easement, then it will generally be attached to the land and it will belong to the new owner. If you have an implied easement, this may not be the case.

In order to determine exactly what is going to happen to the easement when your neighbor sells the property, it is in your best interests to speak with a lawyer who specializes in real estate matters.