“Easement”—it’s a word often thrown around as a replacement for “land” or “title.” Landowners sometimes have an idea of what an easement is–usually through an agreement with a neighbor to use a driveway or a local utility to run a gas line to your home–but few may know exactly what it is.
In simple terms, an easement is another person’s right to use your property for a specific purpose. Easements are prevalent in Illinois, where high voltage transmission lines and natural gas and oil pipelines run aplenty. If you are driving around Illinois and see one of those huge power lines, chances are that line is there because of an easement granted by the landowner to the utility company (possibly under threat of eminent domain).
Here’s everything you need to know about Illinois easement and eminent domain laws.
Understanding Illinois Easement Law
Easement and eminent domain laws can affect Illinois residents in a variety of ways. Understanding how easement laws work and what to expect from eminent domain can help you protect your land from an overly burdensome easement.
What Is an Easement in Illinois?
An easement is property right granted by the property owner to a third party to use the property for a specific purpose.
For example, property easements may be in place for public roadway access, utility installations, shared driveways between neighbors, and access easements for cell towers or solar/wind farms.
Easements can take the form of affirmative or negative agreements:
- Affirmative easements allow certain types of land usage by interested parties.
- Negative easements restrict specific types of land usage.
Illinois easement law recognizes three types of easements:
- Express: A formal agreement between owners and property users. This is the most common type of easement in Illinois. It can include public utility agreements.
- Implied: Created from special or unique circumstances commonly accepted by the owners but not part of a formal agreement. These are often the result of proven need or preexisting use, as with Illinois landlocked property and parcel ownership.
- Presumed: Also known as an easement by prescription. Prescriptive easements in Illinois require that a particular exclusive use of the land has been in place continuously for 20 years or more and has gone uncontested and uninterrupted.
Types of Land Ownership for Eminent Domain in Illinois
Eminent domain refers to the government’s ability to take control of private property and convert it to public use. Governments and utilities can, and do, acquire several types of ownership from landowners.
Fee Simple Title
There are different levels of ownership or property use in land acquisitions. The top level for eminent domain is fee simple title. In percentage terms, fee simple title to property, either owned or conveyed, is 100%. When a landowner acquires, or sells, fee simple title, they are gaining/losing full title to that ground.
Likewise, when a condemnor seeks to acquire your land for purposes of a roadway or otherwise and wants fee simple title to the land, they are seeking complete legal title to the land. They are seeking to OWN the land and all its uses. This would be the equivalent of a homeowner selling their home and land—the buyer gets fee simple title to the land.
Perpetual Easement
The next level, for purposes of eminent domain, is a perpetual easement. A perpetual easement in Illinois is the right to use a piece of land for the purposes stated in the easement forever. In percentage terms, this can mean anywhere from 20-99 percent of the land. The more oppressive or onerous the easement is on the underlying landowner, the higher percentage.
For example, if a pipeline acquires several acres of permanent easement from a farmer to build a pipeline, but the easement also disallows the landowner from farming the easement area, that type of easement would amount to closer to 99% of the land due to its restrictions on the landowner.
Perpetual easements are very common in powerline and pipeline matters. Often, large utilities will seek a perpetual easement over a portion of land to build a powerline or pipeline. How onerous the easement ultimately is for the landowner depends on the protections written into the easement. Often, utility companies will propose broad easements to landowners which grant them more rights than necessary, hoping that an unknowing landowner signs the document without properly reviewing it.
Note: The grantee of the easement (the one receiving the right to use) does NOT own the property. They merely own the RIGHT to use that property. The grantor of the easement (the one giving the easement) still owns the property and may use it if that use does not interfere with the grantee’s use; however, many times the easement is written in such a way that restricts the landowner’s use of the land.
Temporary Easement
The third level of land ownership or use is a temporary easement or temporary right-of-way. This is the same as a perpetual easement, except that the easement is time-capped and only is in effect for a period of time..
Often, temporary easements last between 3-5 years, or until initial construction of the project finishes. Condemning authorities will usually seek temporary right-of-way or temporary easements for running construction crews and other incidental temporary structures necessary for the construction of the road, pipeline, and/or powerline. Like perpetual easements, the rights granted to the easement holder will be defined within the temporary easement document. After the temporary easement expires, it will also be removed from the title on the property.
Landowner Rights in Illinois
It must be noted that eminent domain acquisitions in Illinois of ALL LEVELS OF PROPERTY OWNERSHIP REQUIRE JUST COMPENSATION.
It doesn’t matter if the State or power company wants a temporary easement on the front of your property for a year or fee simple title to the entirety of your property. The condemning authority has to pay you for taking your property rights.
YOU, the landowner, have the RIGHT TO SAY ‘NO’ when the State first offers you money for your land.
What Is Considered Just Compensation for an Eminent Domain Property Seizure?
In Illinois, just compensation includes payment of a fair market value for the property, relocation benefits, and, in some cases, reimbursement of legal fees.
Sever Walker Padgitt strongly advises contacting an attorney well-versed in eminent domain and easement law in Illinois when confronted by a condemning authority for your land.
Can I Fight Eminent Domain in Illinois?
Yes, every Illinois property owner has the right to contest the government’s ability to take their property. The process involves filing objections to the acquisition. Legal scrutiny is essential, and it’s best to enlist the help of legal representatives specializing in eminent domain law.
Sever Walker Padgitt is a multi-state law firm serving landowners faced with eminent domain or condemnation. If you have any questions about these terms or an eminent domain or condemnation matter you may be facing, feel free to call us at 1-888-318-376, email your questions to jordan@swp-legal.com, or fill out our online form.
Frequently Asked Questions
What Is a Perpetual Easement?
A perpetual easement is a legal agreement that is meant to last forever. It allows a third party to use your property for the enumerated uses identified in the easement in perpetuity.
How Long Do Easements Last?
The length of an easement agreement can vary with its intended use and type. Temporary easements can last 3-5 years, whereas perpetual easements are designed to last indefinitely.
How Long Is the Period Required to Establish an Easement by Prescription in Illinois?
In Illinois, a prescriptive easement, also called a presumed easement, can be established for a use of another’s land that has been ongoing for more than 20 years.
Who Is Responsible for Easement Maintenance in Illinois?
According to Illinois easement law, easement maintenance is generally the responsibility of the party who is benefiting from the use of the property. However, depending on the drafting of easement, both parties may share responsibility and, potentially, liability.
Can I Refuse a Utility Easement in Illinois?
Yes, it is possible to reject the language of a proposed easement. However, issuing these rejections can sometimes trigger an eminent domain suit. Sever Walker Padgitt strongly recommends hiring an eminent domain rights lawyer to help you navigate this process.
