Who is responsible to maintain an easement and pay for any damage?

Full question:

Easement to property. In Illinois, who legally is required to maintain the easement? Is it the owner of the property that the easement is on or the property owner that uses the easement? If damages are done to the easement who is required to fix it

• Category: Real Property
• Subcategory: Easements
• Date: 04/07/2025
• State: Illinois

Answer:

Once an easement is created, the owner of the easement has the right and the duty to maintain the easement for its purpose unless otherwise agreed between the owner of the easement and the owner of the underlying property. The owner of the easement can make repairs and improvements to the easement, provided that those repairs or improvements do not interfere in the use and enjoyment of the easement by the owner of the property through which the easement exists

There are basically two types of easements- easements in gross and appurtenant easements. Easements in gross are personal rights given to individuals or specific groups. Once the easement owner dies or, in the case of corporations, dissolves, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.

When the title is transferred, the easement appurtenant typically remains with the property. This type of easement runs with the land; which means that if the property is bought or sold, it is bought or sold with the easement in place. The easement essentially becomes part of the legal description.

To terminate an easement, a condition for the purpose of the easement must have changed, such as:
- Easement's purpose no longer exists
- Ownership of the easement and of the land where the easement is located merges into one owner
Land owner releases the easement
- Easement is abandoned
- Nonuse (of a prescriptive easement)
- Adverse possession by the owner of the land where the easement is located
- Court judgmrnt in a quiet title action
- Misuse of the easement

Misuse of an easement does not usually terminate the easement but may give rise to claims for legal or equitable remedies. Legal proceedings may be necessary to interpret and determine the scope of easements.

Case law has held that an oral easement is a revocable license, which is a mere privilege to enter another’s land for some delineated purpose. Easements are typically required to be inwriting to satisfy the statute of frauds. A license is not subject to the statute of frauds
and freely revocable at the will of the licensor unless estoppel applies to bar revocation.
Estoppel will apply to bar revocation but only when the licensee has invested substantial money or labor or both in reasonable reliance on the license’s continuation.