| Title insurance is generally associated
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| | easement an exclusive right or may other
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| with insuring a purchaser's or lender's
| |
| | property owners use it as well?L. Has an
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| interest in a particular piece of real
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| | event occurred which may have terminated
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| estate. The right to use an easement is
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| | the easement?If the examiner is satisfied
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| often considered less important than
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| | that a valid easement has been
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| unencumbered title of the insured parcel.
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| | established, the next step is to verify
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| An easement, however, can significantly
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| | the continuing physical existence of the
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| affect the value of the insured parcel.
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| | easement. The examiner will review an
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| Questions regarding the validity or use
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| | inspection report or survey of the
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| of an easement may result in a dispute
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| | easement parcel to confirm that the
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| among neighbors that may require
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| | easement is open and in use. In some
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| protracted litigation to resolve.In light
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| | areas, a title company may actually send
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| of the potential for such unpleasantness,
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| | out an employee to physically inspect the
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| the practitioner is well advised to be
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| | property. Upon receipt of the survey or
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| aware of any easements related to the
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| | inspection report, the examiner will want
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| property to be insured. The following
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| | to verify that there are no barriers or
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| discussion is intended as a brief and
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| | obstructions which interfere with the
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| general overview of some of the issues a
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| | purpose of the easements. A survey
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| practitioner will encounter when a title
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| | include the show the easement in its
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| company is asked to insure an easement or
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| | written legal description and in the
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| a piece of real estate affected by an
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| | depiction on the plat. If the easement
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| easement. Of course, each title order
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| | has been recorded, the chain of title
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| will have its own set of circumstances
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| | should cover the easement parcel.The
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| requiring individual attention by the
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| | examiner will also decide whether any
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| title examiner.THE BASICSAn easement is a
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| | events have occurred since the creation
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| non-possessory right of the owner of one
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| | of the easement which may have resulted
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| parcel of land to use the land of
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| | in its termination. If the dominant
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| another. This right to use the other's
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| | tenement has been resubdivided, split
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| land is limited to a particular purpose
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| | into multiple parcels or undergone a
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| and may be further limited as to the form
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| | change in use, the underwriter will
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| of usage. 1 An analysis of this
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| | review the situation to determine the
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| definition raises some important points.
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| | easement's viability.Tax SalesIf an
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| An easement is an interest in land and
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| | existing easement has its own tax number
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| not merely a contract right. The
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| | separate from the servient tenement, a
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| non-possessory feature of an easement
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| | tax search should be ordered to verify
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| differentiates it from fee title to land.
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| | that there are no delinquencies affecting
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| An easement holder may not occupy and
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| | the easement. If an existing easement
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| possess the land burdened by the
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| | lies within a tax parcel affecting the
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| easement; he or she may only use it for
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| | entire servient tenement, however, tax
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| the purposes and in the manner
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| | delinquencies will not affect the
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| established by the terms and conditions
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| | easement. For any easements to be created
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| of the easement.
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| | at a closing, however, all tax
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| The meaningful distinction between an
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| | delinquencies on the servient tenement
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| easement and a fee simple estate is that
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| | must be paid or redeemed prior to the
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| the easement describes the right to the
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| | closing. A tax deed shall not extinguish
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| use of the land which is specific or
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| | or affect any easement which was created
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| restrictive in nature, while the title to
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| | on or over that real property before the
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| the fee is the grant of title to the land
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| | time of the tax sale, unless the entire
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| itself. 3 This difference is significant
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| | sold tax parcel consisted of only the
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| because a fee owner receives substantive
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| | easement parcel itself. 35 ILCS 200/22-70
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| and procedural rights unavailable to
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| | (1992).MergerThe most subtle way of
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| easement holders.Easements are also
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| | destroying an easement is the application
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| distinguishable from leases. A lease is a
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| | of the doctrine of merger. The risk that
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| right to exclusive possession of
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| | the title to the dominant and servient
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| another's property for a specified
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| | tenements has merged is a dangerous
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| period. The key difference here is
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| | possibility that must be addressed by the
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| between possession and use. In Baseball
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| | examiner. The doctrine of merger states
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| Publishing Co. v. Bruton, the Supreme
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| | that if ownership of the dominant and
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| Court of Massachusetts concluded that the
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| | servient tenements becomes vested in the
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| "lease" of a wall for the purpose of
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| | same party, the easement over the
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| maintaining a bill board was in fact an
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| | servient tenement will merge into the fee
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| easement in gross because the wall was
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| | title of the dominant tenement and thus
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| left in the possession of the owner, who
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| | be destroyed. As an example, A owns Lot 1
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| still maintained the right to use the
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| | and has an easement over adjoining Lot 2
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| wall for any purpose not specifically
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| | for ingress and egress. If A buys Lot 2,
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| granted or forbidden by the "
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| | the easement over Lot 2 will merger into
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| lease."Easements are also distinguishable
| |
| | A's fee title and will be destroyed. A's
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| from licenses. Much of the litigation in
| |
| | fee ownership of Lot 2 gives A far
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| this area, including Baseball Publishing,
| |
| | greater right in the land than the
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| begins with one party arguing that the
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| | ownership of the easement, therefore the
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| right in question is a lease-an
| |
| | smaller right merges into the larger one.
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| irrevocable interest in land- and the
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| | If A later conveys Lot 2 to C, the
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| other party asserting that the
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| | easement must be recreated by a new
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| arrangement is a license-a revocable
| |
| | grant.The examiner will search the title
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| personal right-when in fact the interest
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| | of both the dominant and servient
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| might actually be an easement. As a
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| | tenements to look for an incidence of
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| result, essentially the same arrangement
| |
| | common ownership of both tenements in one
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| has been found to constitute a lease in
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| | party. If such commonality of ownership
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| some cases, a license in others, and in
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| | is located, a new easement must be
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| still other cases, an
| |
| | created, even if the common ownership had
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| easement.CLASSIFICATION OF EASEMENTSWhile
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| | been separated later in the chain of
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| the distinction between easements,
| |
| | title.In a recent Illinois case, the
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| leases, licenses, and fee estates may be
| |
| | appellate court stated that a merger
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| somewhat murky, the differentiation among
| |
| | occurs when a dominant estate and the
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| types of easements is little clearer.
| |
| | servient estates are owned by the same
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| Easements are usually separated into
| |
| | person, thereby extinguishing an easement
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| easements appurtenant and easements in
| |
| | by virtue of unity of title and
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| gross. An easement appurtenant is created
| |
| | possession, given that one has no need of
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| to benefit the owner of another parcel,
| |
| | an easement over one's own property.
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| known as the dominant tenement. This
| |
| | Ownership of both the dominant and
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| easement will run over another tract
| |
| | servient estates must be identical in
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| called the servient tenement. The
| |
| | duration, quality, and all other
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| easement appurtenant therefore requires
| |
| | circumstances of right. In Ellis V.
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| both a dominant and servient tenement.
| |
| | McClung, the Illinois appellate court
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| One owner's land must be burdened in
| |
| | held that where the evidence failed to
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| favor of the estate of another. An
| |
| | show that the benefited property and the
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| easement appurtenant runs with the land.
| |
| | property subject to the easements was all
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| If the dominant tenement is sold, the
| |
| | owned by the same parties under identical
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| easement will pass to the grantee, even
| |
| | circumstances, the easements were not
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| though it is not specifically mentioned
| |
| | extinguished by the doctrine of merger.
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| in the document of conveyance. 6
| |
| | These circumstances included the duration
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| Similarly, if the servient tenement is
| |
| | and the quality of the title.
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| sold, the grantee takes subject to the
| |
| | 10AbandonmentAn easement created by a
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| easement.
| |
| | grant, deed or reservation can be
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| An easement in gross does not require
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| | destroyed or lost by the owner's
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| 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
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| 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
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| an irrevocable interest in the land of
| |
| | abandonment, there either must be an
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| another. Whether an easement is
| |
| | overt act which affirmatively and
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| 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.
|
