An easement is a non-possessory right of use over the land of another. Most easements are affirmative, meaning that they give the easement holder the right to use the landowner's property for a specific purpose. Some easements, however, prohibit a landowner from using his land is a certain manner. Such easements are known as negative easements.
Easements are divided into two categories: easements appurtenant and easements in gross.
- Easements Appurtenant – Easements appurtenant are established for the benefit of the adjoining land. The property which benefits from the easement is referred to as the dominant tenement; the property which is burdened by the easement is known as the servient tenement. Easements appurtenant run with the land. This means that they continue to exist regardless of who owns the land.
- Easements in Gross – Easements in gross are established for the benefit of a particular individual or business entity. As a general rule, easements in gross cannot be sold, assigned, or inherited.
Creation of Easements in IL
Illinois law recognizes that easements may be created in a number of ways. The preferred manner of creating an easement is by express grant. An express easement is usually made by deed or contract. The deed or contract should set forth the scope of the easement as well and the location and dimensions of the easement.
An express easement may also arise from the content of a plat by virtue of a “common law dedication”. To create an easement in this manner, a claimant must prove that:
- The party platting the land intended to create an easement; and
- The public accepted the easement.
Others ways in which easements are:
- By Implication;
- By Necessity; and
- By Prescription
Easements By Implication – To establish an easement by implication, a claimant must demonstrate:
Ownership of the dominant and servient estates
by a common owner;
2. Use of the easement, before severance of the dominant and servient estates, in an apparent, obvious, continuous, and manifestly permanent manner; and
3. Necessity of the easement to the beneficial use and enjoyment of the dominant estate.
Proof of prior use is not necessary in easement by implication cases where the land could not be used absent the easement or with disproportionate expense and effort.
- Easements By Necessity – To establish an easement by necessity, a claimant need only prove that the existence of the necessity. The necessity in and of itself is evidence of the intention of the parties to create an easement rather than to render the conveyed property unfit for use or occupancy.
- Easements By Prescription – To establish an easement by prescription, a claimant must prove that his use of the land over which he claims an easement was adverse, exclusive, continuous, and under claim of right or title inconsistent with that of the true owner of the property and that such use has continued for at least twenty years.
Easement Boundary Disputes
Easement disputes frequently arise over the misuse of the easement by the easement holder or the interference by the landowner with the easement holder's use of the easement. Easement disputes may also involve the issues of abandonment and nonuse and encroachment of improvements.
Help from a Real Estate Attorney in Illinois
If you are involved in an easement dispute, it's best to hire an experienced real estate attorney. A real estate attorney can explain easement law and how it affects your case. Additionally, a real estate attorney will evaluate your case and offer his legal opinion on the validity of your claim or defense.