Easement Agreement
(IL)

Summary

This easement agreement template provides for an express grant of an easement in real property in Illinois. This template includes practical guidance, drafting notes, and alternate and optional clauses. An easement is an interest in the real property of another that gives the grantee a right to use the grantor's land in some way. Note that an easement provides use rights, not ownership rights or an ownership interest in the land. The land benefitted by the easement is called the dominant estate (or the easement owner), and the land burdened by the easement is called the servient estate. An easement in Illinois is created by prescription, by express grant or reservation, or by implication. Further, an easement may be either appurtenant or in gross. An easement appurtenant benefits the easement owner in its use of the real property, and runs with the land—i.e., it passes with the conveyance of the land to which it is appurtenant. An easement in gross, on the other hand, is personal to the easement owner and does not benefit any real property. Counsel should be aware that Illinois courts will not construe an easement to be in gross when it may be construed to be appurtenant. See Midwest Transaction Guide §§ 371.20 through 371.21. Since an easement is an interest in land, an express easement is subject to the statute of frauds under Illinois law and, if it is for a period longer than one year, must be in writing. See 740 Ill. Comp. Stat. Ann. 80/2. Note that no particular words are necessary to grant or reserve an easement in Illinois; any words clearly showing the grantor's intention are sufficient. See Pacemaker Food Stores, Inc. v. Seventh Mont Corp., 117 Ill. App. 3d 636 (1983). However, for purposes of clarity, the grantee's counsel should aim to include with specificity all possible acts that the grantee may desire to carry out in connection with the easement. Counsel should note that this template is not for use for an easement by prescription or by implication. In Illinois, a party claiming an easement by prescription must show use of the easement that is adverse, exclusive, continuous, uninterrupted, and under claim of right for a period of at least 20 years. See Weihl v. Wagner, 210 Ill. App. 3d 894 (1991). An easement by implication in Illinois may arise from preexisting use, necessity, or reference to a plat or map. See Granite Properties Ltd. v. Manns, 117 Ill. 2d 425 (1987) and Reiman v. Kale, 83 Ill. App. 3d 773 (1980). This template assumes: • The grant easement is appurtenant and will run with the land • The servient estate's attorney is drafting the agreement • The parties agree as to the precise easement location • The parties have obtained a survey of the easement area For additional information on easements under Illinois law, see Midwest Transaction Guide §§ 371.01 through 371.231. For further guidance on drafting and negotiating easement agreements, see Easement Agreement Basics.