Also known as: non-commercial easement in gross
Written by attorneys · grounded in primary & secondary sources — see below
An interest in land that permits a person to use another's property for personal noncommercial purposes without benefiting any dominant estate. Alienability is determined by the terms and manner of creation, including the personal relations between the original parties, the probable increase in physical use or diminution in value of the servient land if the right is transferred, and whether consideration was paid.
Oliver granted Mia a written right to cross his meadow to reach a scenic overlook, describing the right as personal to Mia and barring guests. Mia later attempted to assign the right to a land trust. Because the grant language emphasized Mia's personal use and contained no words authorizing transfer, the assignment failed and the right remained tied to Mia alone.
Elliot granted his brother Clayton a written right to drive cattle across Elliot's ranch to reach summer pasture. The brothers had long shared the route and the writing contained no restriction on successors. After Elliot sold the ranch, Clayton's successors continued the crossings because the personal and commercial character of the original grant supported alienability.
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Courts examine the personal relations between the original parties at creation, the probable increase in burden on the servient land from transfer, and whether consideration was paid. These factors reveal whether the creating instrument intended the right to remain personal or to pass to others.
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Yes. When the instrument describes the right as personal to the named holder and contains no words authorizing transfer, courts treat the right as nonassignable. The personal wording signals that the grantor intended the benefit to stay with that individual.
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Assignment is unlikely when no consideration was paid and the grant arose from a personal relationship. The absence of payment reinforces that the right was a limited personal accommodation rather than a transferable property interest.
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Yes. If transfer would convert limited personal use into frequent or commercial activity that physically intensifies use or reduces the servient land's value, courts weigh that increased burden against alienability.
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