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