By, Stanley J. Czaja, Illinois & Indiana Underwriting Counsel, WFG National Title Insurance Company

You are looking at purchasing a home, but when you view the house you notice that the only access to it is via a driveway crossing the neighbor’s property. How will the driveway impact your potential purchase? A cable television company is seeking to install its cable lines and would like to run its cable along existing electrical poles. Can the cable company negotiate only with the electric company or must it negotiate with each of the landowners whose property is crossed by the electrical poles? Both of these situations potentially involve an easement. Easements may burden or benefit a parcel of real estate. Either way, easements may affect the value and use of the land. For this reason, it is important to determine whether a property is either burdened or benefited by an easement.

An easement is defined as an interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road). This right may be for such purposes as access, driveway, party wall, drainage, public utilities or other purposes.

Easements are divided into two (2) general categories: “easements in gross” or “easements appurtenant.” An easement in gross is not attached to a dominant parcel, and it is basically the personal right of a person or entity to use the land of another. An easement in gross does not specifically benefit another parcel of land. It runs in favor of a party who does not own the property adjoining the easement. A utility easement given to a utility company such as the phone, gas, cable or electrical company is the most common type of easement in gross.

The second category of easements is the type of easement that we deal with most often. They are “easements appurtenant”. An easement appurtenant is an easement held by the owner of adjacent or nearby real estate that generally runs with the land. An easement appurtenant cannot exist separate and apart from the land to which it is annexed (connected to).

Easements can be created in one of three ways: express creation, creation by prescription, or operation of law. An easement can be expressly created by a specific grant, by reservation in a deed conveying property, by contract or agreement, by lease, or by plat. All of these methods require a written instrument. An easement can also be created by prescription. This means claiming title to the easement through adverse possession. In addition to prescriptive use, operation of law can create an easement by implication or by necessity.

Title companies generally do not insure easements in gross. Title companies will, however, affirmatively insure appurtenant easements provided that certain requirements are met. Those requirements are the following:

  1. The easement must be in writing and recorded and must sufficiently describe the burdened and benefited lands;
  2. The easement must contain the precise location and legal description of the easement area;
  3. The easement must recite the character and purpose of the easement;
  4. The easement must contain language that it runs with the land and is for the benefit of the grantee and the grantee’s successors and assigns;
  5. The easement must be properly executed by all of the owners of the dominant and servient estates;
  6. The easement must contain consent by the lienholders of the servient estate;
  7. Taxes on the servient estate must be current at the time the easement is executed and recorded; and
  8. Confirmation that the dominant and servient parcels are contiguous and that the easement is open and in use (normally confirmed by way of a survey depicting both the dominant and servient parcels).
  9. The easement must not have been extinguished or terminated.

If you have any questions regarding easements, please contact your WFG underwriter for assistance.

By, Stanley J. Czaja, Illinois & Indiana Underwriting Counsel, WFG National Title Insurance Company