Did the title search on your new property reveal that you’re going to be living with an easement? In the city of Chicago and around the suburbs, easements are a fact of life – but they’re not always the ease-iest real estate concept to understand.
So, what is an easement? Are there different types of easements? Is there anything you can do to create or remove an easement? And how will living on land with an easement affect you? Let’s dive into these important FAQs:
What is an Easement?
Put simply, an easement is a designation that says someone else has the legal right to use your property, for a specific purpose. In other words, an easement grants permission for someone who is not the owner of the land to use the land in some capacity. Generally speaking, easements are quite limited in scope and functionality. Perhaps the best way to explain easements is to break down a few common examples:
- Right of Way: In some cases, you may need to leave a path clear for utility companies, commuters, or neighbors to be able to drive across your property. Utility workers may need to use your land to access a power line or breaker, or neighbors may need to be able to access your property in order to get to theirs. This could mean you, as the property owner, might face some restrictions on your ability to put up a fence or obstruct theses paths, for example.
- Historic Easements: If you live in a neighborhood or building that has been designated “historic,” there may be restrictions on how much you can develop in and around the property.
- Recreational Easements: In this scenario, your property may but up against woods, a beach, a trail, or other undeveloped land, which others can use for recreational purposes. You may not be able to make changes to the property that impair public access to these recreational, open spaces.
- Negative Easements: In some situations, an easement may dictate that you cannot build or develop in a way that might restrict a neighbor’s access to light, or a scenic view.
- HOA/Condo: Generally speaking, if you live in a condominium or on a property governed by a homeowners’ association, a third party organization will own/manage public spaces, granting owners the right to access or pass through.
We could go on. There are many different scenarios in which easements could apply. This is one reason why surveying a property is an essential step of the real estate transaction. During the survey and title search, attorneys and title agents will be able to determine if there are any existing easements on the property, and, if so, how those easements may affect the buyer moving forward.
How Are Easements Created and Transferred?
Broadly speaking, the creation of an easement “requires the same formalities as the transferring or creating of other interests in land,” as FindLaw puts it. This means that the creation of an easement may occur through the conveyance of a deed, a will, or a contract, and typically requires “a written instrument, a signature, and proper delivery of the document.” In some cases, courts may ultimately decide that there is an implied easement, based on extenuating circumstances (such as necessity).
The length of an easement may vary – it could be limited to a few weeks (such as granting temporary permission to construction crews), or it could last for as long as the property itself. Generally speaking, there are two primary types of easements, which dictate how the easement is transferred:
- “In Gross”: An easement in gross is an arrangement you make with one particular person or group to allow access to the property. Broadly speaking, these types of easements are generally not automatically transferable.
- “Appurtenant”: An easement in appurtenant applies to the land, making it transferable from owner to owner during a sale.
Some easements can be dissolved or terminated. Generally speaking, if it can be proven that the easement is being used beyond its intended use, or creating an unreasonable burden for the property owner, you may be able to remedy the matter in court. These matters can be tricky, however. Keep in mind that the specifics of your individual circumstances will matter a great deal, and there are many possible outcomes, including the extinguishment of the easement, compensation, and so on.
Have Any More Questions About Easements?
Easements are a fact of life when it comes to real estate in Chicagoland, but they can be complicated and confusing. If you have any further questions about easements, don’t hesitate to get in touch with an experienced real estate attorney. If you’re curious about how to create, terminate, or live with an easement, an attorney is a valuable resource, who can help determine the specifics of your case, evaluate the impact of an easement, and help you explore possible solutions and remedies for your unique situation.
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 project can move forward as quickly and smoothly as humanly possible.
Don’t hesitate to drop us a line today to get the conversation started.