| Title insurance is generally associated
| |
| | easement an exclusive right or may other
|
| with insuring a purchaser's or lender's
| |
| | property owners use it as well?L. Has an
|
| interest in a particular piece of real
| |
| | event occurred which may have terminated
|
| estate. The right to use an easement is
| |
| | the easement?If the examiner is satisfied
|
| often considered less important than
| |
| | that a valid easement has been
|
| unencumbered title of the insured parcel.
| |
| | established, the next step is to verify
|
| An easement, however, can significantly
| |
| | the continuing physical existence of the
|
| affect the value of the insured parcel.
| |
| | easement. The examiner will review an
|
| Questions regarding the validity or use
| |
| | inspection report or survey of the
|
| of an easement may result in a dispute
| |
| | easement parcel to confirm that the
|
| among neighbors that may require
| |
| | easement is open and in use. In some
|
| protracted litigation to resolve.In light
| |
| | areas, a title company may actually send
|
| of the potential for such unpleasantness,
| |
| | out an employee to physically inspect the
|
| the practitioner is well advised to be
| |
| | property. Upon receipt of the survey or
|
| aware of any easements related to the
| |
| | inspection report, the examiner will want
|
| property to be insured. The following
| |
| | to verify that there are no barriers or
|
| discussion is intended as a brief and
| |
| | obstructions which interfere with the
|
| general overview of some of the issues a
| |
| | purpose of the easements. A survey
|
| practitioner will encounter when a title
| |
| | include the show the easement in its
|
| company is asked to insure an easement or
| |
| | written legal description and in the
|
| a piece of real estate affected by an
| |
| | depiction on the plat. If the easement
|
| easement. Of course, each title order
| |
| | has been recorded, the chain of title
|
| will have its own set of circumstances
| |
| | should cover the easement parcel.The
|
| requiring individual attention by the
| |
| | examiner will also decide whether any
|
| title examiner.THE BASICSAn easement is a
| |
| | events have occurred since the creation
|
| non-possessory right of the owner of one
| |
| | of the easement which may have resulted
|
| parcel of land to use the land of
| |
| | in its termination. If the dominant
|
| another. This right to use the other's
| |
| | tenement has been resubdivided, split
|
| land is limited to a particular purpose
| |
| | into multiple parcels or undergone a
|
| and may be further limited as to the form
| |
| | change in use, the underwriter will
|
| of usage. 1 An analysis of this
| |
| | review the situation to determine the
|
| definition raises some important points.
| |
| | easement's viability.Tax SalesIf an
|
| An easement is an interest in land and
| |
| | existing easement has its own tax number
|
| not merely a contract right. The
| |
| | separate from the servient tenement, a
|
| non-possessory feature of an easement
| |
| | tax search should be ordered to verify
|
| differentiates it from fee title to land.
| |
| | that there are no delinquencies affecting
|
| An easement holder may not occupy and
| |
| | the easement. If an existing easement
|
| possess the land burdened by the
| |
| | lies within a tax parcel affecting the
|
| easement; he or she may only use it for
| |
| | entire servient tenement, however, tax
|
| the purposes and in the manner
| |
| | delinquencies will not affect the
|
| established by the terms and conditions
| |
| | easement. For any easements to be created
|
| of the easement.
| |
| | at a closing, however, all tax
|
| The meaningful distinction between an
| |
| | delinquencies on the servient tenement
|
| easement and a fee simple estate is that
| |
| | must be paid or redeemed prior to the
|
| the easement describes the right to the
| |
| | closing. A tax deed shall not extinguish
|
| use of the land which is specific or
| |
| | or affect any easement which was created
|
| restrictive in nature, while the title to
| |
| | on or over that real property before the
|
| the fee is the grant of title to the land
| |
| | time of the tax sale, unless the entire
|
| itself. 3 This difference is significant
| |
| | sold tax parcel consisted of only the
|
| because a fee owner receives substantive
| |
| | easement parcel itself. 35 ILCS 200/22-70
|
| and procedural rights unavailable to
| |
| | (1992).MergerThe most subtle way of
|
| easement holders.Easements are also
| |
| | destroying an easement is the application
|
| distinguishable from leases. A lease is a
| |
| | of the doctrine of merger. The risk that
|
| right to exclusive possession of
| |
| | the title to the dominant and servient
|
| another's property for a specified
| |
| | tenements has merged is a dangerous
|
| period. The key difference here is
| |
| | possibility that must be addressed by the
|
| between possession and use. In Baseball
| |
| | examiner. The doctrine of merger states
|
| Publishing Co. v. Bruton, the Supreme
| |
| | that if ownership of the dominant and
|
| Court of Massachusetts concluded that the
| |
| | servient tenements becomes vested in the
|
| "lease" of a wall for the purpose of
| |
| | same party, the easement over the
|
| maintaining a bill board was in fact an
| |
| | servient tenement will merge into the fee
|
| easement in gross because the wall was
| |
| | title of the dominant tenement and thus
|
| left in the possession of the owner, who
| |
| | be destroyed. As an example, A owns Lot 1
|
| still maintained the right to use the
| |
| | and has an easement over adjoining Lot 2
|
| wall for any purpose not specifically
| |
| | for ingress and egress. If A buys Lot 2,
|
| granted or forbidden by the "
| |
| | the easement over Lot 2 will merger into
|
| lease."Easements are also distinguishable
| |
| | A's fee title and will be destroyed. A's
|
| from licenses. Much of the litigation in
| |
| | fee ownership of Lot 2 gives A far
|
| this area, including Baseball Publishing,
| |
| | greater right in the land than the
|
| begins with one party arguing that the
| |
| | ownership of the easement, therefore the
|
| right in question is a lease-an
| |
| | smaller right merges into the larger one.
|
| irrevocable interest in land- and the
| |
| | If A later conveys Lot 2 to C, the
|
| other party asserting that the
| |
| | easement must be recreated by a new
|
| arrangement is a license-a revocable
| |
| | grant.The examiner will search the title
|
| personal right-when in fact the interest
| |
| | of both the dominant and servient
|
| might actually be an easement. As a
| |
| | tenements to look for an incidence of
|
| result, essentially the same arrangement
| |
| | common ownership of both tenements in one
|
| has been found to constitute a lease in
| |
| | party. If such commonality of ownership
|
| some cases, a license in others, and in
| |
| | is located, a new easement must be
|
| still other cases, an
| |
| | created, even if the common ownership had
|
| easement.CLASSIFICATION OF EASEMENTSWhile
| |
| | been separated later in the chain of
|
| the distinction between easements,
| |
| | title.In a recent Illinois case, the
|
| leases, licenses, and fee estates may be
| |
| | appellate court stated that a merger
|
| somewhat murky, the differentiation among
| |
| | occurs when a dominant estate and the
|
| types of easements is little clearer.
| |
| | servient estates are owned by the same
|
| Easements are usually separated into
| |
| | person, thereby extinguishing an easement
|
| easements appurtenant and easements in
| |
| | by virtue of unity of title and
|
| gross. An easement appurtenant is created
| |
| | possession, given that one has no need of
|
| to benefit the owner of another parcel,
| |
| | an easement over one's own property.
|
| known as the dominant tenement. This
| |
| | Ownership of both the dominant and
|
| easement will run over another tract
| |
| | servient estates must be identical in
|
| called the servient tenement. The
| |
| | duration, quality, and all other
|
| easement appurtenant therefore requires
| |
| | circumstances of right. In Ellis V.
|
| both a dominant and servient tenement.
| |
| | McClung, the Illinois appellate court
|
| One owner's land must be burdened in
| |
| | held that where the evidence failed to
|
| favor of the estate of another. An
| |
| | show that the benefited property and the
|
| easement appurtenant runs with the land.
| |
| | property subject to the easements was all
|
| If the dominant tenement is sold, the
| |
| | owned by the same parties under identical
|
| easement will pass to the grantee, even
| |
| | circumstances, the easements were not
|
| though it is not specifically mentioned
| |
| | extinguished by the doctrine of merger.
|
| in the document of conveyance. 6
| |
| | These circumstances included the duration
|
| Similarly, if the servient tenement is
| |
| | and the quality of the title.
|
| sold, the grantee takes subject to the
| |
| | 10AbandonmentAn easement created by a
|
| easement.
| |
| | grant, deed or reservation can be
|
| An easement in gross does not require
| |
| | destroyed or lost by the owner's
|
| its holder to own or possess other land.
| |
| | voluntary abandonment. There is no duty
|
| There is a servient estate, but no
| |
| | to use or enjoy an easement as a
|
| dominant one. For this reason, an
| |
| | condition of the right to retain the
|
| easement in gross has been described as
| |
| | easement. Therefore, to constitute an
|
| an irrevocable interest in the land of
| |
| | abandonment, there either must be an
|
| another. Whether an easement is
| |
| | overt act which affirmatively and
|
| appurtenant or in gross is determined by
| |
| | unequivocally shows an intent to abandon
|
| examining the grant of easement to detect
| |
| | the easement, or a failure to act. This
|
| the intention of the parties and the
| |
| | carries the implication that the owner
|
| circumstances at the time of the
| |
| | neither claims nor retains any interest
|
| conveyance. While the deed of conveyance
| |
| | in the easement. The dominant owner must
|
| need not include the word "appurtenant,"
| |
| | clearly relinquish possession or use of
|
| the courts have often presumed that an
| |
| | the easement. The abandonment is complete
|
| easement is appurtenant rather than in
| |
| | the moment the intent to abandon and the
|
| gross. There is a constructional
| |
| | relinquishment of possession or use
|
| preference for easements appurtenant over
| |
| | unite. 11Destruction by Agreement:
|
| easements in gross.This preference for
| |
| | AbrogationAn easement may be terminated
|
| easements appurtenant can be overcome by
| |
| | by an agreement between the owners of the
|
| an examination of the land involved. If
| |
| | dominant and servient estates. This
|
| the easement does not benefit the owner
| |
| | agreement is often known as an abrogation
|
| of a particular piece of land, there is
| |
| | agreement because it abrogates or ends
|
| no dominant tract and the easement is in
| |
| | the easement. If the examiner encounters
|
| gross.8 Utility easements are usually
| |
| | an abrogation agreement in the chain of
|
| held in gross. An easement appurtenant
| |
| | title which terminates the easement to be
|
| can not be converted into an easement in
| |
| | insured, the easement is
|
| gross. The easement's classification will
| |
| | uninsurable.Waiver of an EasementIf a
|
| remain in effect throughout its
| |
| | customer requests that an easement be
|
| usage.CREATION OF AN EASEMENTMost
| |
| | waived as an exception on the title
|
| easements are created by express grant
| |
| | commitment for a servient tenement, the
|
| contained in an easement agreement or
| |
| | title company will usually require that a
|
| deed or by reservation in a deed. An
| |
| | validly executed abrogation agreement be
|
| express grant, however, is not always
| |
| | recorded. This agreement must be executed
|
| necessary to create an easement.An
| |
| | by all parties having an interest in the
|
| easement may be acquired by prescription
| |
| | dominant tenement. In some cases, a
|
| and by implication as well as by express
| |
| | necessary parties search should be
|
| grant. Whether an easement by
| |
| | ordered to determine the list of parties
|
| prescription is appurtenant or in gross
| |
| | who will need to join in the abrogation
|
| is determined by the use of the servient
| |
| | agreement.This articles incorporates
|
| estate. If the prescriptive use was for
| |
| | Chicago Title Insurance Company
|
| the benefit of the possessor of a
| |
| | Underwriting Guidebooks and examining
|
| particular piece of land, the easement is
| |
| | manuals, as well as a September, 1997
|
| appurtenant. If it is not for such
| |
| | article on Easements by Jeffrey Rezwin
|
| benefit, it is in gross. Implied
| |
| | and Mary Scmuttenmaer of Chicago Title
|
| easements may be deemed necessary for the
| |
| | Insurance Company. These materials are
|
| use of the dominant estate. Clearly then,
| |
| | incorporated without specific citation.1.
|
| they are easements appurtenant to the
| |
| | W. Burby Handbook of the Law of Real
|
| dominant parcel.TITLE INSURANCE ISSUESA
| |
| | Property S23 (3rd Edition, 1965).2. The
|
| title insurer will be faced with two
| |
| | Law of Easements and Licenses in Land,
|
| major concerns regarding easements:
| |
| | Bruce and Ely, p. 1-2 (1988).3. Park
|
| whether the easement can be insured for a
| |
| | County Rod and Gun Club v. Department of
|
| dominant tract and whether an easement
| |
| | Highways, 163 Montana 372,377; 517 P. 2d
|
| can be waived as an exception to the
| |
| | 353,355 (1973).4. Baseball Publishing v.
|
| coverage provided by the title policy for
| |
| | Bruton, 302 Mass. 54, 56, 18 N. E. 2d
|
| a servient tract.If the title company is
| |
| | 362,364 (1938).5. R. Powell, The Law of
|
| requested to insure an easement for the
| |
| | Real Property, P. 430 (1987).6. Taylor v.
|
| first time, the following questions will
| |
| | Lanahan, 73, Ill. App. 3d 829, 832; 399
|
| be raised:A. Is the easement
| |
| | NE 2d 425, 428 (1977).7. The Law of
|
| appurtenant?B. What land is benefited by
| |
| | Easements and Licenses in Land, Bruce and
|
| the easement?C. Were the dominant and
| |
| | Ely, p. 2-5.(1988).8. The Law of
|
| servient tenements owned by different
| |
| | Easements and Licenses in Land, Bruce and
|
| parties at the time of the creation of
| |
| | Ely, p. 2-6 and 2-7 (1988).9. Curtin v.
|
| the easements?D. Was the easement
| |
| | Franchetti, 156 Conn. 387, 389; 242 A. 2d
|
| executed by or consented to by all of the
| |
| | 725, 727 (1968).10. Ellis v. McClung 291
|
| lienholders of the servient tenement?E.
| |
| | Ill. App. 3d 448, 459,460 (1997).11.
|
| How was the easement created, and was the
| |
| | Illinois Real Property Service, Sales and
|
| document creating it properly drafted,
| |
| | Transfers, Section 30:48 (1988).Neda
|
| executed and acknowledged?F. Does the
| |
| | Dabestani-Ryba is a licensed Realtor in
|
| document creating the easement state its
| |
| | Maryland. She is a member of the
|
| purpose?G. Does the document state
| |
| | President's Circle of Top Real Estate
|
| consideration?H. Is the easement
| |
| | Professionals. She can be reached at
|
| described specifically as an easement
| |
| | (800) 536-3806 or visit her website for
|
| appurtenant, binding on successors and
| |
| | more information:
|
| assigns?I. Does the easement document
| |
| | Prudential Carruthers REALTORS is an
|
| provide that it runs with the land?J.
| |
| | independently owned and operated member
|
| Does the easement indicate a duration, or
| |
| | of Prudential Real Estate Affiliates,
|
| is it described as perpetual?K. Is the
| |
| | Inc., a Prudential Financial company.
|