We want to Build a House on our Property, But the Only Access would be through an Easement, Can the Owner of the Easement Sue us for Using it?

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“I recently purchased 9 acres of land that has an easement attached to it. There is a 40 foot public road easement that was granted back in the 70’s on the property and has never been used. We want to build a new house on the property. The only access is a driveway tile installed right on this 40′ easement. We have been told that if we build there and use this drive as our access we could possibly be sued or the owner of the easement could put a lien on our property. Is this true? If we are not blocking his access in any way, are we not entitled to use this drive to get to our house? No one has ever used the easement and as far as we know does not plan to, but that could always change. Please help us – we have already started the foundation work and have put the project on hold until we can figure out what rights we have. The state highway department will not grant us the right for a new access. We live in IL. Thank you!”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

The answer depends in part on the exact wording of the document which created the easement. Driveway easements are usually non-exclusive, meaning that the property owner can continue using the property so long as the easement is not interfered with. A public road easement, however, may be exclusive–meaning that you essentially lose the right to use that part of your land at all.

I would start by going back to the person who told you you could not build there, and asking what the authority is for his opinion.

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Author: House Attorney

A house attorney has answered this question.

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