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