An easement provides the right for a person or business entity to use property they don’t own for a specific purpose.
Understanding easements is crucial for your clients to navigate property rights and usage effectively. It’s essential for them to recognize how easements can impact property value, access, and future development plans.
Here we share five things your clients need to know about easements.
1. Definition and Types of Easements
An easement is the right to use land owned by another person.
It is non-possessory, meaning the person has a right to use the land, but not share in the title. An easement can be positive, providing use, or negative, prohibiting use often in a specific manner.
There are two categories of easements:
- Easements Appurtenant: These easements relate to adjoining land, with the property benefiting from the easement being the “dominant tenement” and the property burdened by the easement the “servient tenement.” Easements appurtenant transfer from owner to owner when the property is sold.
- Easements in Gross: In this case, the easement is established for a specific person or business, and usually cannot be assigned, inherited, or sold. A good example would be utility easements.
2. Benefits of Easements
Easements can make life easier for neighbors as well as utilities that need to access land for specific purposes.
For example, a property in the country might have an odd property line that requires one landowner to share a driveway owned by their neighbor to reach farm fields or their home. Another example might be utility companies needing to access pipelines or utility cables to provide service to the area.
3. Limitations of Easements
Easement owners are limited to the original use of the easement and do not apply to other lands owned by the servient tenement.
Also, fences, gates, and posts create obstructions to easements, limiting access to the dominant tenement. As a result, they have a right to remove anything they feel limits their use of the easement.
4. Potential Impact on Property Value
Easements can reduce, increase, or have absolutely no impact on property value.
It depends on whether the easement presents a benefit or deterrent to property use. For example, a negative easement prohibiting building on the land due to a conservation agreement can reduce value while the use of a lovely lake would increase value.
5. Navigating Easement Disputes
Easement disputes commonly occur due to misuse on the dominant tenement’s part or interference of use on the servient tenement’s part.
Other disputes might include issues such as encroachments caused by property “improvements,” or abandonment and non-use. Because courts consider that easements last in perpetuity unless otherwise stipulated in the agreement, it can be difficult to have an easement removed. However, there are ways to navigate easement disputes including:
- Having a written agreement to terminate the easement
- Requesting property lines be reset when the easement has been abandoned or is never used
- Allowing the easement to naturally expire if the holder agrees
However, if either party is not interested in resolving the dispute, it requires legal action and advice from a real estate attorney who understands easement laws. They can review the easement to search for “loopholes” that make it easier to resolve disputes.
Easements are a complex but essential aspect of property law that can significantly impact the use and value of a property. It is imperative for brokers to equip their clients with a comprehensive understanding of easements, including their types, benefits, limitations, and the potential for disputes.
The Minchella & Associates Difference
With over 40 years of experience in Illinois real estate law, Erica Minchella has represented thousands of home sellers and buyers, landlords, and commercial and investment property owners. For more information, schedule a consultation today.
