+ Reply to Thread
Results 1 to 7 of 7
  1. #1
    ctd94 is offline Junior Member
    Join Date
    Nov 2009
    Posts
    1

    Unhappy Easement Rights/ Squatter rights

    What is the name of your state (only U.S. law)? IL

    My husband and I have owned our home/property for 6 years. His brother owned it 10 + years before us. our property line ends, and our driveway goes on to the road. The driveway has just always been there. We've maintained it threw out the years and someone buying the woods at the end of our property (next to the driveway) is claiming that the drive way falls on his property line. He Blocked our driveway. Where can we fine our Easement? And don't we have Squatter rights?
  2. #2
    justalayman is offline Senior Member
    Join Date
    Nov 2005
    Location
    in the ether
    Posts
    33,981
    a prescriptive easement requires 20 years to establish in Illinois.

    if there is a granted easement, it would either be in your deed or attached to your deed at the registrar of deeds (or whatever Illinois calls that department).
  3. #3
    154NH773 is offline Member
    Join Date
    Dec 2007
    Location
    New Hampshire
    Posts
    931
    The easement, if one exists, could also be in your neighbors deed. You may have to search both your deed and his, and the previous owners of the properties going back as far as you can.
    A title company can do the search for a small fee, or you can do it yourself with a little help from the people at the registry (County Recorder of Deeds).
  4. #4
    justalayman is offline Senior Member
    Join Date
    Nov 2005
    Location
    in the ether
    Posts
    33,981
    a grant of easement in the neighbors property may not give the OP the right to use that easement. I know it sounds screwy but it is possible an easement be recorded and become enforceable against what would be the servient tenement but still not be given to the what would be the dominant tenement.

    Only if that easement is deeded to the dominant tenement can it be claimed by the dominant tenant.

    an example:

    I owned a lot which I granted and deeded an easement across to my brother who owned the neighboring lot. He had other access so it was not of necessity.

    When he sold his lot, out agreement was that he would not sell the rights of the easement with the lot. So, what you would have is: a grant of easement recorded against my property; originally a grant to his property; but if he never conveys that interest to a subsequent owner of his property, the rights of the easement do not transfer to the new owner.

    Now, this obviously would cause a great deal of confusion and is not the proper way to do things but it would set up a situation where there was a grant recorded against my property yet the owner of what was the dominant tenement has no rights to the easement.

    unusual but possible

    Just the same; if the grantee of an easement was being charged for the maintenance of an easement they had no need for and desired to not be liable for any maintenance costs anymore, they could relinquish rights to that easement. Again, there would be a grant registered either in deed or attached to the deed of the servient tenement still yet the what was dominant tenement would have no rights to the easement.

    Hopefully and properly there would also be a release of the rights of the easement in both cases registered with the servient tenement but even if there were not, the rights were severed by the dominant tenants actions and as such, no rights to subsequent owners of the dominant tenement would transfer.

    It all really gets down to what rights were transferred to you by the deed your were given. If the easement rights were never transferred to you, then you have no claim to use said easement, regardless what was originally granted by the servient tenant.
  5. #5
    154NH773 is offline Member
    Join Date
    Dec 2007
    Location
    New Hampshire
    Posts
    931
    I agree with most of what justalaymen says, although all those conditions for extinguishing the easement must be spelled out somewhere. The issue I have is with the statement;
    Only if that easement is deeded to the dominant tenement can it be claimed by the dominant tenant.
    Let's say, for example, that I have two lots A & B, with access for lot B going across lot A. If I sell lot A and keep lot B, I would sell lot A with a covenant in its new deed reserving an easement in favor of lot B. That easement would be appurtenant to the deed of lot A, and forever run with the land.
    In this situation, as owner of lot B, I am the dominant tenant on the easement running through lot A, although I have nothing in my deed stating so.

    I believe the grant of an easement must be; in the deed of the servient tenant, or appurtanent to that deed by inclusion in some prior deed to that property, or granted by deed by the owner of the servient estate.

    In my particular situation, although I have a statement in my deed saying I have a right of way through four other properties, someone may have just written that in so as to sell me the property. In order to ensure I really have a right of way, it was necessary to examine all the deeds through which the right of way passes.
    All the other deeds contained a covenant granting a right of way to the previous owner of my property, and further gave a location for the right of way. Even though my deed said nothing about the location, I held them to the location in their deeds.
    In the earliest of the neighboring deeds, it also states they must contribute to maintenance, but later deeds do not state that. A court determined they were obligated for maintenance by examining the earlier deeds and ordered them to reimburse me for maintenance cost, even though neither my deed, nor their current deeds, said anything about contribution to maintenance costs.
    Last edited by 154NH773; 11-19-2009 at 04:23 PM.
  6. #6
    justalayman is offline Senior Member
    Join Date
    Nov 2005
    Location
    in the ether
    Posts
    33,981
    Quote Originally Posted by 154NH773 View Post
    I agree with most of what justalaymen says, although all those conditions for extinguishing the easement must be spelled out somewhere..
    I'll leave that one alone since that is not what the thread was about and due to my verbosity, 1/2 of the easement situation ends up with enough typing.

    I believe the grant of an easement must be; in the deed of the servient tenant, or appurtanent to that deed by inclusion in some prior deed to that property, or granted by deed by the owner of the servient estate.
    If I was the owner of the servient tenement and I granted the easement, the easement would not be included in MY deed. It would be included, most likely only by reference, in any deed I used to convey my interests to the next owner of my rights but it would not be in any deed that granted the property rights to me, unless, of course, I granted my rights to myself and others but generally speaking, if I sold the property, the easement would never show up in a deed granting ownership to me.
  7. #7
    154NH773 is offline Member
    Join Date
    Dec 2007
    Location
    New Hampshire
    Posts
    931
    If I was the owner of the servient tenement and I granted the easement, the easement would not be included in MY deed.
    I agree; that would be the third "or" in my statement.

    I just want the OP to understand that in order to find the easement, he may have to search titles other than his own.

Similar Threads

  1. squatter rights for NYC
    By Andrea Weaver in forum Landlord / Tenant Issues
    Replies: 6
    Last Post: 07-13-2010, 11:08 AM
  2. Squatter's Rights
    By DK Taylor in forum Landlord / Tenant Issues
    Replies: 1
    Last Post: 07-14-2009, 05:06 AM
  3. Squatter's Rights
    By icanlanc in forum Other Real Estate Law Questions
    Replies: 2
    Last Post: 06-18-2003, 10:31 AM
  4. CA squatter's rights
    By Phil Stokes in forum Other Real Estate Law Questions
    Replies: 1
    Last Post: 07-21-2001, 11:51 PM
  5. Squatter's Rights
    By Nishka in forum Other Real Estate Law Questions
    Replies: 1
    Last Post: 11-18-2000, 12:57 PM

Tags for this Thread

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  

© 1995-2012 Advice Company, All Rights Reserved

FreeAdvice® has been providing millions of consumers with outstanding advice, free, since 1995. While not a substitute for personal advice from a licensed professional, it is available AS IS, subject to our Disclaimer and Terms & Conditions Of Use.