Also known as: noncommercial easement in gross · non-commercial easement in gross · non-commercial easements in gross · easement in gross · noncommercial easement
Written by attorneys · grounded in primary & secondary sources — see below
A personal right to use land belonging to another that does not benefit any particular parcel, with its alienability governed by the manner and terms of creation.
Nina Nielsen held a noncommercial easement in gross permitting her to cross Norman Nash's ranch for personal recreation. Nina later purchased the fee simple interest in the exact strip of land she had been crossing. Because she could now make the same use through ownership, the easement ended over that strip.
Nyah Ndlovu received a noncommercial easement in gross to fish in a private pond on Nobel Dynamics land. The creating instrument contained no language permitting transfer. When Nyah attempted to assign the right to a friend, the company blocked the assignment because the terms of creation did not authorize it.
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Nolan Nunez obtained a noncommercial easement in gross allowing him to gather firewood from Nile Shipping's timberland. The grant document expressly stated the right was personal and nontransferable. After Nolan tried to sell the privilege, the court looked to the original terms and held the easement remained nonalienable.
The alienability of a noncommercial easement in gross is governed by the manner and terms of its creation. If the creating instrument or surrounding circumstances show an intent that the right remain personal, assignment is not permitted. Many jurisdictions follow the majority rule that such easements are not assignable unless the document expressly allows it.
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Acquisition of an estate in the servient tenement extinguishes the easement in gross to the extent the owner can now make the same uses through ownership. Extinguishment occurs only to the matching extent of the acquired estate and does not automatically eliminate the entire easement.
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Commercial easements in gross are treated as alienable property interests that may be subjected to the same restrictions as estates in land of like duration. Noncommercial easements in gross lack this automatic alienability and instead depend on the specific terms or circumstances of creation.
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…Telluray Ranch Corp. , 965 P.2d 1229, 1234 (Colo.1998)(quotation marks omitted). An easement can be in gross or appurtenant. An easement in gross does not belong to an individual by virtue of her ownership of land, but rather is a personal right to use another's property. Lewitz v. Porath Family Trust , 36 P.3d 120, 122 (Colo.App.…