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Easement Gives One Access, Not Ownership

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM # LAW 757

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A ThinkGlink reader has an easement through his neighbor's property to connect his home to the street. The neighbor is now making it difficult to access the property. Ilyce and Sam explain the different types of easements and this reader's rights.

Q: I bought my home, which is surrounded by other property. The house included an easement that allows me ingress and egress for my property.
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My neighbor bought the lot next door with full knowledge of the easement.

The easement was properly recorded with the county. My neighbor wants to park on the easement. We informed him that it would impair our use. He’s seeking permission from the courts to grant him the right to park on the easement.

What do you think our chances are in stopping him from parking on the easement?

A: Some homes are not adjacent public streets and if they are not, these homeowners need a way to get from the public streets to their home. The only way they can get from the private street is by going over a neighbor’s property.

You have an easement that gives you certain rights over your neighbor’s property. The neighbor still owns the property and can still use the easement area subject to your rights.

The key to your case is going to be deciding what rights you are granted under the easement document and what rights the owner of the property that gave you the easement retained to that land.

An easement can take many forms and include a variety of restrictions. Some easements may allow only pedestrians to use a piece of land, while others might allow automobiles but not trucks. Others easements may be in place to allow light and air to pass through an area or to avoid obstructing views.

If your easement agreement was very clear as to what rights you were given, the owner of the land on which the easement is located can’t and shouldn’t be able to interfere with your use of the easement area.

If your neighbor can park on a part of the easement area and you still have full access to your property, the court may decide that the neighbor’s use is consistent with the easement grant and permit him to park on the easement area. If his parking on the easement area impairs your ability to use the easement, the court should find that the neighbor’s use is inconsistent with the easement grant and should not permit his continued parking on the easement area.

You need to keep in mind that just because you have an easement, you don’t own the land. The neighbor can install utilities under the easement area and may even be able to build over the easement area. The issue becomes whether that use is inconsistent with your use to deprive you of your rights under your easement.

As you are in litigation and presumably have an attorney representing you, you should consult with him or her to review the specific terms of your easement and how the law of your state typically handles issues like yours.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website www.thinkglink.com