Real Estate

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

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Incorporeal hereditaments are non-physical property rights attached to land that pass with title under Pennsylvania law. These include easements, profits à prendre, and restrictive covenants governed by common law principles codified in Pennsylvania statutes. Prescriptive easements arise after twenty-one years of open, continuous, adverse, and notorious use under Pennsylvania case law. Pennsylvania courts recognize incorporeal interests as real property under 68 Pa.C.S. § 102, making them inheritable, transferable, and enforceable against successors in title. Failure to identify these rights during title examination can result in post-closing title defects, use restrictions, or liability for interference with established property interests.

Stephen H. Lebovitz is a real estate attorney in Pittsburgh who represents property owners, buyers, and sellers in transactions involving easements, title disputes, and property rights issues.

What Is an Incorporeal Hereditament in Pennsylvania?

An incorporeal hereditament is a property right without physical form that runs with land and binds successors in title.

The term comes from common law. “Hereditament” means any interest capable of passing by inheritance. “Incorporeal” means without physical form. Pennsylvania law treats incorporeal hereditaments as real property interests that attach to land, run with the land when properly created, and bind successors in title whether or not the deed expressly mentions them. Common examples include easements appurtenant, easements in gross, profits à prendre, restrictive covenants, and rentcharges. These interests appear in recorded deeds, are searchable in county land records, and can be valued, sold, and litigated. A landowner who acquires fee simple title takes the land subject to all recorded incorporeal interests, and in some cases to unrecorded interests established by prescription or necessity. The failure to identify these interests during title examination is one of the most common sources of post-closing disputes in Pennsylvania real estate transactions.

The Principal Categories Under Pennsylvania Law

Pennsylvania courts recognize several distinct classes of incorporeal hereditaments, each governed by its own body of law.

Easements are the most common incorporeal interest. An easement grants the right to use another’s land for a specific purpose without owning it. Pennsylvania law recognizes easements appurtenant, which run with the land and benefit a dominant tenement while burdening a servient tenement, and easements in gross, which are personal to the holder. An easement appurtenant passes automatically when either parcel is conveyed, whether or not the deed mentions it. Easements arise by express grant, by reservation in a deed, by implication from prior use, by necessity when a parcel is landlocked, and by prescription through twenty-one years of open, continuous, adverse, and notorious use. Each method carries distinct evidentiary requirements. Utility companies commonly hold easements in gross across residential and commercial properties. Disputes over scope, location, and permissible use generate substantial litigation in Pennsylvania courts of common pleas.

Profits à prendre grant the right to enter another’s land and extract resources: timber, minerals, game, fish, or soil. Pennsylvania’s history as a coal, oil, and timber state produced generations of profit instruments that remain of record today. A landowner who purchases fee simple title without examining the full chain may discover subsurface or extractive rights held by unknown third parties.

Covenants Running With the Land

Restrictive covenants limit land use and bind future owners when properly created and recorded.

A covenant is a promise respecting land use that binds not only the original covenantor but all subsequent owners of the burdened parcel. Pennsylvania courts apply the traditional requirements: intent to bind successors, privity of estate, and a covenant that touches and concerns the land. Restrictive covenants limiting use to residential purposes, prohibiting subdivision, requiring architectural approval, or mandating common area maintenance are common in subdivisions and planned communities. The burden of a restrictive covenant runs with the servient land, meaning any buyer takes title subject to the restriction if it appears in the recorded chain of title. The benefit runs with the dominant land, entitling the holder to enforce the covenant against violators. Equitable servitudes may be enforced even where technical requirements for a running covenant are not met, provided the party charged had notice. Changed conditions that render the covenant’s purpose impossible may support termination, but this defense requires clear proof that the entire neighborhood character has fundamentally altered.

Why These Interests Matter in Practice

Incorporeal hereditaments affect four critical contexts: purchase transactions, estate administration, litigation, and development.

In purchase transactions, buyer’s counsel and title insurers examine the chain of title for recorded easements, covenants, and 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 assumed. Title insurance protects against undisclosed interests, but not against interests of record. Pennsylvania follows the principle that recorded instruments provide constructive notice to all subsequent purchasers under 21 P.S. § 351. A recorded easement binds a buyer even if the buyer never saw the deed that created it, never knew it existed, and never intended to take title subject to it. Actual knowledge is not required. Recordation provides constructive notice sufficient to bind all successors in interest.

In estate administration, incorporeal interests owned by the decedent must be inventoried and valued. A profit à prendre in subsurface minerals, a reserved easement generating commercial income, or a beneficial covenant enhancing dominant parcel value each has ascertainable value belonging in the estate inventory.

In development, an easement or covenant inconsequential to a residential owner can be outcome-determinative for a developer. A twenty-foot right of way used as a footpath may lie directly in the path of a proposed structure. A 1948 restrictive covenant limiting use to single-family residential may still be enforceable depending on whether neighborhood changes defeated the covenant’s purpose.

Creation and Termination Under Pennsylvania Law

Incorporeal hereditaments are created by express written instrument, by implication, by necessity, by prescription, or by estoppel.

Each mode of creation carries different consequences for scope and durability. 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 stage of enforcement.

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

Incorporeal hereditaments arise constantly in Pennsylvania real estate transactions. They affect value, restrict use, and bind successors whether or not the current owner knows they exist. The recorded easement no one examined before closing is the one that blocks the addition three years later. The restrictive covenant no one thought to enforce generates the lawsuit after construction begins.

Pennsylvania property law governing incorporeal hereditaments is found in Title 68 of the Pennsylvania Consolidated Statutes and Pennsylvania case law interpreting common law property principles. Additional guidance is available through the Pennsylvania Unified Judicial System and the Pennsylvania Code and Bulletin.

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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.