Different Types of Property Easements: An Overview

When you buy a home, you’re purchasing a lot more than just four walls. Here in Chicagoland, purchasing a property is often going to mean inheriting the specific property easements that come with it. 

In short, an easement is a designation that says someone else has the legal right to use your property, generally for a specific purpose. In other words? You own the land, but a third party has permission to use part of that land in some capacity – generally, within a very limited scope, or for a fairly limited purpose. You may grant an easement after purchasing the land, or buy land that comes with easements already attached. 

For buyers, searching for easements is typically part and parcel (see what we did there?) of completing a real estate transaction. As you move forward with purchasing a property, a survey and title search will generally be executed, in order to allow attorneys and title agents to determine if there are any existing easements associated with the property – and, if so, how those easements may impact the buyer (i.e., if they limit your use of the property, affect your ability to develop the land, or diminish the value of the property). 

Though easements can have a wide range of functions, and be created in several different ways, they largely fall into one of two categories – “appurtenant,” and “in gross.”

Let’s explore the differences between these common, broad types of easements: 

  • Easement Appurtenant: Generally speaking, an easement appurtenant is one that is associated with the parcel of land itself. In this scenario, the land that is burdened by the easement is considered “servient,” while the land that is benefited is known as the dominant tenement or dominant estate. Broadly, because they are attached to the land, easements appurtenant are transferred in a sale, unless express provisions are made to the contrary. 
  • Easement In Gross: In contrast to an easement appurtenant, an easement in gross benefits a specific individual or group, rather than a parcel of land. This type of easement creates an arrangement that allows a specific person or group to use a part of a property, whether for personal enjoyment or for commercial purposes. This type of easement can be transferred with a property, most commonly if it is associated with “commercial uses such as telephones, pipelines, transmission lines, and railroads,” as the FindLaw blog explains. 

With this in mind, it’s also important to note that easements can be created in several different ways. Broadly speaking, the creation of an easement is generally said to be express, implied, or prescriptive. 

An express easement is created as part of a written agreement between two parties, who both consent to the creation of the easement. As FindLaw notes, creating an easement in this way generally “requires the same formalities as the transferring or creating of other interests in land,” including “a written instrument, a signature, and proper delivery of the document.” 

In certain cases, easements can also be implied. A common example of an implied easement is known as an easement by necessity, which occurs when a parcel of land is landlocked, and its occupants must cross another in order to access roads or public utilities. 

Finally, an easement may be established through prescriptive use, or the routine, adverse use of land by a party besides the owner, without the owner’s permission. In order to acquire a prescriptive easement, certain qualifications have to be met. Broadly speaking, for instance, the use of the land must be open and not secretive, done without the landowner’s consent, and be continuously performed for a certain period of time. 

Have Any More Questions About Common Types of Easements?

Easements are a fact of life when it comes to real estate in Chicagoland, but they can be complicated and confusing. It’s important to note that we’ve written only about this important concept in very general terms – and we’ve barely scratched the surface of all that there is to explore and understand. 

If you have any further questions about easements, one key step forward may be to get in touch with an experienced real estate attorney in your area. If you’re curious about how to create, terminate, or live with an easement, a local attorney is a valuable resource, one who can help determine the specifics of your case, and explore potential solutions and remedies based on your unique circumstances. 

Have any more questions? Looking for guidance on real estate and title matters as you consider purchasing, selling, or developing property here in Chicago? The Gunderson Law Firm can help.The attorneys and staff of the Gunderson Law Firm possess unparalleled expertise and insight, reinforced by years of experience and long-term connections throughout Chicago’s real estate, finance, and insurance industries. In fact, our attorneys are also title insurance agents for several of the top title insurance companies in the world.

From processing purchase and sale agreements and title paperwork, to helping you get through the zoning boards, historical commissions, licensing boards, easement granters, and more with the right papers in the right places, our team can help you make sure you’ve got all the “i’s” dotted and “t’s” crossed correctly, so that your real estate project can move forward as quickly and smoothly as humanly possible. Don’t hesitate to drop us a line whenever you’d like to get the conversation started.

2019-11-04T16:47:29-06:00 November 14th, 2019|Community|