Real Estate

What You Own That You Cannot Touch: Incorporeal Hereditaments in Pennsylvania Property Law

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When a client asks what they own, the answer is rarely limited to what they can see from the street. Pennsylvania property law has long recognized a category of ownership interests that are real, enforceable, and capable of being bought, sold, inherited, and litigated over, yet have no physical form whatsoever. The common law called them incorporeal hereditaments. The label has fallen somewhat out of fashion. The interests themselves have not.

A hereditament, in the traditional sense, is any property interest capable of being inherited. A corporeal hereditament is tangible: the land itself, the building on it, the timber standing on it. An incorporeal hereditament is a right attached to or running with land that confers legal benefit or burden without constituting a physical thing. It passes with the property. It binds successors. It can be worth a great deal of money or cost a great deal of money, depending on which side of it you are on.

Most property owners do not know what incorporeal interests encumber or benefit their land until something goes wrong. A neighbor asserts a right of way. A buyer’s title search surfaces a recorded covenant. A developer discovers that an adjacent parcel holds an easement that runs directly through the proposed construction footprint. At that point, the abstract becomes very concrete indeed.

The Principal Categories

Pennsylvania courts and practitioners recognize several principal classes of incorporeal hereditaments, each with its own body of law governing creation, transfer, scope, and termination.

Easements. An easement is the right to use the land of another for a specific purpose. It does not convey ownership. It conveys use. An easement appurtenant runs with the land: it benefits a dominant tenement and burdens a servient tenement, and it passes automatically when either parcel is conveyed, whether or not the deed mentions it. An easement in gross is personal to its holder and does not attach to any parcel as dominant estate. Utility easements are the most familiar example.

Easements are created by express grant, by reservation in a deed, by implication from prior use, by necessity when a parcel is landlocked, and by prescription through open, continuous, adverse, and notorious use over a period of twenty-one years under Pennsylvania law. Each method of creation carries its own evidentiary requirements, and disputes about scope, location, and permissible use of easements generate a substantial volume of litigation in this Commonwealth.

Profits a prendre. A profit is the right to enter another’s land and take something from it: timber, minerals, game, fish, soil. Unlike an easement, a profit conveys the right to extract a physical resource. Pennsylvania’s history as a coal, oil, and timber state produced generations of profit instruments, many of which are still of record and still operative. A landowner who has not examined the chain of title carefully may be surprised to discover that what appears on the surface to be a clean fee simple ownership conceals subsurface or extractive rights held by parties entirely unknown to the current occupant.

Covenants running with the land. A covenant is a promise respecting land use that, when properly created, binds not only the original covenantor but all subsequent owners of the burdened parcel. Restrictive covenants limiting use to residential purposes, prohibiting subdivision, requiring architectural approval, or mandating maintenance of common areas are among the most common. Pennsylvania courts apply the traditional requirements of intent to bind successors, privity of estate, and a covenant that touches and concerns the land. Equitable servitudes may be enforced even where the technical requirements for a running covenant are not met, provided the party charged had notice.

Licenses. A license is a personal permission to use land that does not rise to the dignity of an easement. It is revocable at will, does not run with the land, and creates no interest in real property. The distinction between a license and an easement is not always obvious from the instrument creating it, and the consequences of the distinction are significant. A neighbor who has been crossing your land by permission for fifteen years may assert that the permission ripened into something more durable. Whether it did depends on facts and law that require careful analysis.

Rent charges and rentcharges. A rentcharge is an obligation to pay a periodic sum charged upon land, enforceable against the land itself and not merely against a personal obligor. The rentcharge has largely fallen from use in modern conveyancing but appears in older chains of title, particularly in certain Philadelphia-area and western Pennsylvania communities where the ground rent tradition persisted well into the twentieth century. Ground rents of this type, when still operative, can cloud title and create collection rights that are not obvious from inspection of the land itself.

Why These Interests Matter in Modern Practice

The practical significance of incorporeal hereditaments appears most acutely in four contexts: purchase and sale transactions, estate administration, litigation, and development.

In a purchase transaction, the buyer’s counsel and the title insurer must examine the chain of title for recorded easements, covenants, and other encumbrances. A buyer who takes title without appreciating the scope of a recorded right of way, or without understanding that a restrictive covenant prohibits the intended use, has paid for something other than what was assumed. Title insurance protects against certain risks of undisclosed interests, but it does not protect against interests that are of record and therefore disclosed. The disclosed easement that the buyer did not read is the buyer’s problem, not the insurer’s.

In estate administration, incorporeal interests owned by the decedent must be inventoried and valued. A profit a prendre in subsurface minerals, a reserved easement that generates commercial income, a beneficial covenant that enhances the value of a dominant parcel: each of these has ascertainable value and belongs in the inventory of the estate. Executors who omit them understate the estate’s assets and potentially understate the inheritance tax base. Executors who do not know they exist cannot report them at all.

In litigation, disputes over the existence, scope, location, and termination of incorporeal interests are among the most fact-intensive matters that come before Pennsylvania’s courts of common pleas. The party asserting a prescriptive easement must prove twenty-one years of use that was open, continuous, adverse, and notorious. The party seeking to extinguish an easement by abandonment must show not merely non-use but affirmative acts manifesting an intent to abandon. These are questions on which the outcome turns on documentary evidence, survey work, and witness testimony developed over years or decades.

In development, an easement or covenant that was inconsequential to a residential owner can be outcome-determinative for a developer. A twenty-foot right of way that a family used as a footpath for a generation may lie directly in the path of a proposed structure. A restrictive covenant that limited use to single-family residential purposes in 1948 may still be enforceable today, depending on whether the neighborhood has changed sufficiently to defeat the covenant’s purpose. These are not questions with obvious answers, and they are not questions that should first be addressed after ground has been broken.

Creation, Transfer, and Termination

Incorporeal hereditaments are created by express written instrument, by implication, by necessity, by prescription, or in some cases by estoppel. Each mode of creation carries different consequences for the scope and durability of the interest. An expressly granted easement is defined by its instrument. An implied easement is defined by the circumstances of the severance that gave rise to it. A prescriptive easement is defined by the use that established it, and its scope may be disputed at every point.

Transfer follows the character of the interest. An appurtenant easement passes with the dominant estate without separate conveyance. A profit in gross may be assignable or not, depending on its terms and on whether it is commercial or personal in nature. A covenant’s benefit runs with the dominant land; its burden runs with the servient land, subject to the requirements of privity and touch and concern.

Termination occurs by express release, by merger when the dominant and servient estates come into common ownership, by abandonment evidenced by affirmative acts of relinquishment, by estoppel, by prescription running against the holder of the interest, or by changed conditions that render the purpose of the interest impossible to achieve. Each ground of termination has its own requirements, and termination that is assumed rather than established by competent evidence leaves a title problem for the next transaction.

The Lesson the Old Cases Teach

The common law vocabulary around incorporeal hereditaments is not archaic ornamentation. It is a precise technical language developed to describe interests that arise constantly in practice, that affect value materially, and that produce disputes when they are not understood by the parties on both sides of a transaction. A lawyer who knows what an incorporeal hereditament is, and who takes the trouble to find out whether one exists before a client closes on a property, adds something to the transaction that no amount of general due diligence replaces.

The interest that no one thought to look for is the one that generates the litigation. It was true when the common law courts first developed these categories. It remains true today.

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This article is for general informational purposes and does not constitute legal advice. Contact our office to discuss your specific situation.

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