Also known as: hold in gross · holding in gross · holds in gross · in gross
Written by attorneys · grounded in primary & secondary sources — see below
A servitude benefit that accrues directly to a person or entity rather than to the possessor of any particular tract of land in the use of that tract.
Horizon Realty grants a power company a perpetual right to string transmission lines across its acreage. The right is created solely for the company's transmission network and confers no advantage on any parcel the company owns. Because the benefit serves the company directly rather than any land it possesses, the easement is held in gross.
Heritage Trust sells every lot in a subdivision while reserving the right to approve all future architectural changes. After selling its last parcel, the trust retains only the approval power. The burden remains attached to each lot, but the benefit now runs to the trust alone and is therefore held in gross.
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Henry Harrison conveys to a billboard operator the perpetual right to maintain signs on his roadside parcel. The operator owns no neighboring land. The easement is commercial in character and therefore freely alienable as an interest held in gross.
Hannah Hale donates a perpetual restriction against development on her farm to a land trust that owns no adjacent property. The trust holds the benefit solely for its conservation mission. Under the applicable test the benefit is classified as held in gross because it serves the trust more usefully than any successor owner of Hale's land.
Hiroshi Hasegawa grants an oil company the perpetual right to maintain a pipeline across his ranch. The company owns no other land in the area. The profit is commercial and may therefore be subjected to the same restraints on alienation that apply to a fee simple estate of like duration.
Harbor National Bank grants its retiring president a lifetime right to hunt on a bank-owned preserve. The right is created by the terms of the conveyance and is expressly limited to the president alone. Because the benefit is noncommercial and personal, its alienability is governed by the manner and terms of its creation.
The benefit is held in gross when it is created to serve a person or entity directly and does not benefit the possessor of any particular tract in the use of that tract. Courts examine the purpose stated at creation and whether the right would be more useful to the original holder than to a successor owner of any land.
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Modern servitudes doctrine permits enforcement by the holder of a benefit held in gross provided the holder demonstrates a legitimate interest in enforcement. Traditional doctrine refused enforcement absent benefited land, but the Restatement (Third) and many jurisdictions now allow enforcement when the interest is legitimate.
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Yes. An easement in gross that is commercial in character is an alienable property interest that may be subjected to the same restrictions on alienation that apply to estates in land of like duration.
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Alienability of a noncommercial easement in gross is determined by the manner and terms of its creation, including any personal relations between the parties at the time of creation and any express limitations placed on transfer.
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…9-1.1 (b) applies to options. In Buffalo Seminary v McCarthy (86 AD2d 435, supra ), the court held that an unlimited option in gross to purchase real property was void under the statutory rule against remote vesting, and we affirmed the Appellate Division decision on the opinion of then-Justice Hancock (58 NY2d 867).…