Easements Destroyed by Merger

At the local chapter meeting of Professional Surveyors and Mappers, a local attorney spoke on easements and how they are created and how they are destroyed. I was particularly interested in the portion of his presentation relating to the destruction of easements by merger of the dominate and servient parties to the easement.

I wanted more information on the subject, because I wondered whether this destruction of easement would be solely dependent on the merger of the parties to the easement, or whether there could be factors which would provide an exception to that rule.

For instance, I am going back to Indiana to update an ALTA survey of a residential apartment complex situated on 6 contiguous tracts of land. When build, they were constructed in phases, each financed as construction progressed, and title taken by a different partnership, with the same general partner as I recall. Cross easements were written to give access to the common private streets and the community pool.

The property was sold to the existing owner, and financed by a single lender in 1999. The title company furnished the easement documents at that time and I hadn’t thought about the extinguishing of those easements until last Thursday’s meeting.

That made me wonder what would happen if there was common ownership, but the tracts were financed by different lenders? Thus the reason for my research. I found an article in the March/April issue of “Title Issues” by John J. O’Leary, Esq, entitled “Easy Does It, Watch Your Step – An Overview of Easements” where he states:

In a recent Illinois case, the appellate court stated that a merger occurs when a dominant estate and the servient estates are owned by the same person, thereby extinguishing an easement by virtue of unity of title and possession, given that one has no need of an easement over one’s own property. Ownership of both the dominant and servient estates must be identical in duration, quality, and all other circumstances of right. In Ellis V. McClung, the Illinois appellate court held that where the evidence failed to show that the benefited property and the property subject to the easements was all owned by the same parties under identical circumstances, the easements were not extinguished by the doctrine of merger. (emphasis mine)

The cite for this case is Ellis v. McClung 291 Ill. App. 3d 448, 459,460 (1997).

This would indicate that the easements would not be extinguished because the fact that the mortgages were held by different parties would indicate that the circumstances were not identical. Question answered. I therefor do not know whether the easements were extinguished prior to my previous ALTA or as the result of the transaction after my ALTA survey.

Lawyers Title Insurance Company has again sent me the title documents, and again included the same easement documents. This ALTA is for a refinance by the existing owner with the same lender.

Based on these findings, I will be sure to point out on my survey the extinguishing of these easements by the previous transaction, if not before, to avoid liability to the title company should a portion of the property be sold and the expense of rewriting these easements become necessary.