Easements
An easement is the right to use the land of another for a particular purpose. It may exist in any portion of the real estate, including the airspace above or a right-of-way across the land.
An Appurtenant easement is attached to the ownership of one parcel and allows the owner the use of a neighbor’s land. For an appurtenant easement to exist, two adjacent parcels of land must be owned by two different parties. The parcel over which the easement runs is known as the servient tenement; the neighboring parcel that benefits is known as the dominant tenement.
A party wall can be an exterior wall of a building that straddles the boundary line between two lots, or it can be a commonly shared partition wall between two connected properties. Each lot owner owns the half of the wall on his lot, and each lot owner has an appurtenant easement in the other half of the wall. A written party wall agreement must be used to create the easement rights. Expenses to build and maintain the wall are usually shared. A fence built on the lot line is treated similarly.
Easement In Gross
An easement in gross is an individual or company interest in or right to use someone else’s land, without being appurtenant to that land – rights-of-way or utility easements.
- Commercial easements in gross may be assigned, conveyed, and inherited.
- Personal easements in gross are usually not assignable.
- Generally, a personal easement in gross terminates on the death of the easement owner.
Creating an Easement
An easement is commonly created by a written agreement between parties that establishes the easement right. It may be created by the grantor in a deed of conveyance, in which the grantor either reserves an easement over the sold land or grants the new owner an easement over the grantor’s remaining land.
Easement by Necessity
An easement that is created when an owner sells a parcel of land that has no access to a street or public way except over the seller’s remaining land is an easement by necessity.
An easement by necessity is created by court order based on the principle that owners must have the right to enter and exit their land the right of ingress (enter) and egress (exit); they cannot be landlocked.
Easement by prescription
If the claimant has made use of another’s land for a certain period of time as defined by state law, an easement by prescription, or a prescriptive easement, may be acquired. The claimant’s use must have been
- continuous,
- exclusive,
- without the owner’s approval (“adverse”).
- visible,
- open,
- notorious; that is, the owner must have been able to learn of it.
A visible fence, continuous gardening on the back lot, or driving over property so often that ruts are visible are all examples.
To establish an easement by prescription in Illinois, the use must be adverse, exclusive, under claim of right, and continuous and uninterrupted for a period of 20 years. Illinois law permits owners of pedestrian walkways in shopping centers and large commercial or industrial buildings to prevent the establishment of prescriptive easements by the public.
To block the establishment of a prescriptive easement, the owner of any property must:
- display signs,
- send a certified letter stating that access to or use of the property is by permission (and thus not adverse).
The concept of tacking provides that successive periods of continuous occupation by different parties may be combined (tacked on) to reach the required total number of years necessary to establish a claim for a prescriptive easement (20 years in Illinois).
Easement by Condemnation
An easement by condemnation is acquired for a public purpose, through the right of eminent domain. The owner of the servient tenement must be compensated for any loss in property value.
Terminating an Easement
An easement terminates:
- when the need no longer exists,
- when the owner of either the dominant or the servient tenement becomes the owner of both properties (also known as termination by merger),
- by release of the right of easement to the owner of the servient tenement,
- by abandonment of the easement (the intention of the parties is the determining factor),
- by non use of a prescriptive easement,
- by destruction of the servient tenement,
- by lawsuit,
- by property conversion.
