[¶ 1] Thomas J. Wentworth, Bobbie J. Wentworth, and Earle C. Hildreth, Jr. (Wentworth) 1 appeal from the summary judgment entered in the Superior Court (Androscoggin County, Gorman, J.) in favor of Earleen Sebra (Sebra) holding that a contested easement expired when the original grantee died. Wentworth contends that the Superior Court erred in: (1) applying the strict common law technical requirеment that the word “heir” must be used to create a perpetual easement; (2) granting the summary judgment without first providing Wentworth the opportunity, through an evidentiary hearing, to establish the transferability of the easement by factual proof; (3) distinguishing between an easement affirmatively conveyed to the grantee and an easement retained by the grantor; (4) concluding that the use of the word “heirs” in the habendum does not enlarge the estate conveyed by the granting clause; and (5) failing to consider whether the easement may be “successively assigned.” We disagree and affirm the judgment.
BACKGROUND
[¶ 2] Wentworth owns a parcel of land near the Bowdoinham Road in Lisbon. The lot does not abut Bowdoinham Road. Sebra owns a parcel of land that lies between the Bowdoinham Road and Went-worth’s parcel (Sebra’s parcel is bordered by the Bowdoinham Road on the north and Wentworth’s property on the south). 2 Wentworth claims an easement over Se-bra’s land by virtue of a right-of-way granted by Fred K. Small to U.G. Harding dated September 14, 1917, and recorded in the Androscoggin Cоunty Registry of Deeds.
[¶ 3] The 1917 deed conveyed the land, now owned by Wentworth, to Harding’s “heirs and assigns,” and also contained the following language specifically conveying an easement:
Said U.G. Harding and assigns to have right of way across land belonging to the grantor lying Northerly of said Potter brook [sic] to the Main road [sic].
[¶4] Notably, the easement clause did not contain the word “heirs.” The deed also contained no description of the location, width, scope, or other details of the easement. Harding died prior to November 12, 1974. Subsequent deeds in Went-worth’s chain of title describe and attempt to transfer the claimed easement.
[¶ 5] After a dispute arose concerning Wentworth’s right to access his property by crossing Sebra’s, Wentworth filed a two-count complaint against Sebra. In Count I, Wentworth sought a declaration from the court: (1) that he and his successors in title have an easement to their parcel from Bowdoinham Road over Se-bra’s parcel; (2) locating the easement on the face of the earth, its width, and the scоpe of its use; and (3) describing any and all other rights, easements, privileges, and appurtenances relating to the easement burdening Sebra’s parcel or benefiting Wentworth’s. In Count II, Wentworth *523 sought injunctive relief to prevent Sebra from interfering with his use of the easement.
[¶ 6] Sebra’s answer denied that an easement over her property existed. She also counterclaimed asserting that Wentworth had no easement because the deed that originally created the right-of-way did not contain words of inheritance. Pursuant to 33 M.R.S.A. § 772(2) (Supp.2002), 3 she sought to “recover” the easement and vest herself with unencumbered title.
[¶ 7] Following discovery, Sebra moved for a summary judgment and Wentworth filed a cross motion for а partial summary judgment.
[¶ 8] Because the 1917 deed was drafted prior to the Maine Short Forms Deeds Act of 1967,
4
the Superior Court applied the “unyielding” common law rule that the technical word “heirs” must be used to create a perpetual interest.
5
Noting that in other places in the deed, the parties used the phrase “heirs and assigns,” the court determined that the omission of “heirs” from the easement clause was conscious and could only suggest that the easement was not intended to be permanent. Furthermore, the court rejected Wentworth’s reliance on
O’Donovan v. McIntosh,
DISCUSSION
A. Standard of Review
[¶ 9] “We review the grant of a motion for summary judgment de novo,
*524
viewing the evidence in the light most favorable to the party against whom judgment has been granted, to decide whether the parties’ statements of material facts and the referenced record material reveal a genuine issue of material fact.”
Rogers v. Jackson,
[¶ 10] Moreover, the interpretation of a deed is a question of law subject to de novo review.
ALC Dev. Corp. v. Walker,
B. Required Use of the Term “Heirs”
[¶ 11] Wentworth contends that the Superior Court erred when it applied the “unyielding” common law rule that the term “heirs” must be used in a clausе conveying an easement to create an interest of perpetual duration. He relies on our decisions in
Stickney v. City of Saco,
[¶ 12] The law recognizеs two different types of easements or rights of use over the property of another: easements appurtenant and easements in gross.
Stickney,
[¶ 13] In contrast, easements in gross are personal interests in land or the right to use another’s land.
Id.
¶ 32,
[¶ 14] When construing deeds created prior to the enactment of the Short Forms Deeds Act, we look to the laws in effect at the time the deed was drafted.
6
Id.
¶ 39,
[¶ 15] However, in
O’Neill,
we explained that we have long recognized that this technical requirement often frustrated the parties’ intent; therefore, we have “routinely construed a provision in a deed purporting to reserve an easement for the benefit of land retаined by the grantor as the creation of an easement appurtenant to that land ... obviat[ing] the requirement of the technical word ‘heirs’ to preserve an interest of perpetual duration.”
O’Neill,
[¶ 16] More recently, in
Stickney,
we considered a reserved right-of-way
7
and determined that even though the easement clause omitted the term “heirs,” the easement was perpetual because the grantor’s intеnt to make it perpetual could be presumed from the facts at play.
Stickney,
[¶ 17] Here, unlike the granting clauses in
O’Neill
and
Stickney,
the easement clause does not “reserve” an easement for the benefit of the grantor’s land, rather it burdens the grantor’s land for the benefit of the grantee’s land. In this context, we cannot assume that the grantor intended to indefinitely burden his land and convey anything other than a life estate in the easement. In a case decided only eight years prior to the drafting of the Small-Harding deed, we explicitly stated that the phrase “assigns forever” created only a life interest and that the term “heirs” was essential to create an estate in fee.
Brown v. Dickey,
[¶ 18] Finally, as the Superior Court found,
O’Donovan
does not assist Went-worth. In
O’Donovan,
we were asked to decide whether an easement in gross created in a 1989 deed was assignable, not whether it was perpetual.
8
O’Donovan,
C. Hearing
[¶ 19] Wentworth asserts that the Superior Court erred by not granting a hearing to allow him to establish the parties’ intent to make the easement perpetual through factual proof because O’Neill and Stiekney pеrmit a court to find that an easement in gross is perpetual based on the surrounding facts. Because we have concluded that the rule applied in O’Neill and Stiekney does not apply to this case and that the use of the term “heirs” was required to create a perpetual easement, Wentworth cannot establish through factual proof that the рarties intended to make the easement perpetual. In addition, Wentworth’s complaint did not'claim that he could establish the existence of the easement as a matter of fact on the basis of some other legal theory, e.g., an easement by necessity or by prescription. Therefore, the Court did not err in not holding a hearing.
D. Habendum 9
[¶20] Beсause the term “heirs” appears in the habendum and in the larger paragraph that grants the parcel described, which contains the easement clause, Wentworth contends that the Superior Court erred in concluding that the absence of the term “heirs” from the easement clause can only create a life interest. He relies on the principle that a habendum may enlarge the estate conveyed by a granting clause and suggests that the presence of the term “heirs” in other parts of the deed demonstrates the parties’ intent to make the easement perpetual.
[¶ 21] It is not clear that Went-worth has properly preserved this argument. If he has, however, the hаbendum clause can enlarge an estate conveyed only if it is not repugnant to the premises.
10
See Emery v. Chase,
E. Successive Assignment
[¶ 22] Wentworth argues that, once the Superior Court concluded that the easement was not technically perpetual, the court should have, nevertheless, according to
O’Donovan,
asked whether it was “successively assignable.” As discussed in reference to Wentworth’s first argument,
O’Donovan
stands for the proposition that, although not generally assignable, an easement in gross is assignable if the parties clearly express that intent in the deed.
O’Donovan,
The entry is:
Judgment affirmed.
Notes
. Together, Thomas and Bobbie Wentworth own the parcel of land adjacent to Earleen Sebra’s land. Earle Hildreth is the Went-worths' immediate predecessor in interest. Henceforth, the plaintiffs will be referrеd to simply as Wentworth.
. In his brief, Wentworth describes his parcel as landlocked. The Superior Court accepted this description. Nowhere does Sebra dispute it. The statements of material fact, however, do not assert that the parcel is or is not landlocked, only that it does not abut Bow-doinham Road.
. Section 772(2) provides:
Preservation of Rights. A person claiming an interest in real estate by reason of the omission of technical words of inheritance or the lack of an habendum clause in a deed that conveyed or reserved a property interest before October 7, 1967 may preserve that claim by commencing a civil action for the recovery of that property in the Supеrior Court or the District Court in the county or division in which the property is located on or before December 31, 2002.
33 M.R.S.A. § 772(2) (Supp.2002). Sebra filed her counterclaim on November 9, 2001 and has preserved her claim that omission of technical words of inheritance in the 1917 deed created an easement limited to the life of Harding.
. The Short Forms Deeds Act abolished the technical requirement that the term "heirs” must be used to create an interest of perpetual duration. 33 M.R.S.A. § 772 (1999). Effective September 18, 1999, section 772 applied retroactively. Section 772(1) provides:
Words of inheritance; habendum. In a conveyance or reservation of real estate, the terms "heirs,” "successors,” "assigns” "forever” оr other technical words of inheritance, or an habendum clause, are not necessary to convey or reserve an estate in fee. A conveyance or reservation of real estate, whether made before or after the effective date of this section, must be construed to convey or reserve an estatе in fee simple, unless a different intention clearly appears in the deed.
33 M.R.S.A. § 772(1) (Supp.2002).
.Because in her counterclaim, Sebra has invoked the savings clause of 33 M.R.S.A. § 772(2) (Supp.2002), we apply the law in effect at the time the deed was drafted and need not consider the constitutionality of the retroactive application of 33 M.R.S.A. § 772(1) (Supp.2002) in the absence of such an invocation.
. But see n.5, supra.
. According to the 1915 deed, the grantor deeded a parcel of land
“reserving a right of way, ten feet wide
...”
Stickney v. City of Saco,
. In
O’Donovan,
the grantor conveyed a parcel by warranty deed, excepting and reserving an easement.
O’Donovan v. McIntosh,
. Also termed "to-have-and-to-hold clause,” in a deed, the habendum clause begins with the introductory words "to have and to hold” and defines “the extent of the interest being granted and any conditions affecting the grant." BLACK’S LAW DICTIONARY 716 (7th ed.1999).
. The "premises” in a deed refers to everything that precedes the habendum.
Berry v. Billings,
. This is not a case like
Higgins v. Wasgatt,