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.
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:
Others ways in which easements are:
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.
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.
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.