Legal Question in Real Estate Law in Illinois

I have an easement on my property for ingress and egress for the adjoining neighbors but it was created with a quitclaim deed years and years ago and filed and recorded AFTER the original property owner sold the property. For example the sale was recorded at 1:00 p.m. and the easement was recorded at 1:01 p.m. Is the easement legal? Can we have it extinguished?


Asked on 7/29/14, 7:58 pm

2 Answers from Attorneys

Henry Repay Law Offices of Henry Repay

While an attorney can more carefully evaluate the documents and the circumstances to evaluate whether there are possibilities to eliminate or change the easement, it is likely valid. It sounds like you had notice of it when you purchased (should be noted in your title commitment).

Recording has more to do with being on notice than whether someone had the proper interest to convey. So, for example, you could have a scenario in which A deeds to B, but never records, B deeds to C and records, then somewhere along the way the first deed is recorded out of sequence. That does not change who had authority to sell. It could have caused a concern, though, if A had then given a second deed to D, who recorded in a timely manner. In that event, D would be protected over B and C because of the lack of notice in the public record.

That may be confusing, but the point is that the act of recording itself is not what impacts the property rights, except to protect parties in new conveyances.

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Answered on 7/30/14, 7:36 am

The order in which the documents were recorded constitute only one aspect of the overall transaction. If the documents both were dated and recorded the same date, that would evidence an intent to create the easement prior to conveyance of the property, and the sequence of recording could have been a clerical error or misdirection. Legal research would be required to see what the courts have said about such situations most recently. But when you say "extinguish" you are talking about the likelihood of having to file a lawsuit against the people who are being benefited by the easements, to have the easements removed as a "cloud on title". One of the defenses in such cases is that you purchased the property knowing the easements existed, and did nothing to object. Up front without more information and a significant amount of research on those matters and potentially others once all the facts are learned, you're talking about a possible loser that will just aggravate your neighbors, especially if (as I suspect) the ingress/egress easement may be the only way in and out of their properties. It may be better to think about relocating the easements by agreement.....

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Answered on 7/30/14, 10:04 am


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