National Financial, LP v. Pobuda, 2014 IL 116717
Property ownership is one of the oldest and most valued rights we enjoy. That’s why it’s also one of the most protected rights—protection strong enough to trump the 1st Amendment at times. Still, the use and enjoyment of land is not exclusively limited to the landowner. Often, people seek permission to use land that is owned by someone else. But sometimes, land is utilized without express permission. In Illinois if there is a non-permissive use land for a 20-year period, and that use is adverse, uninterrupted, exclusive, continuous and under a claim of right, the user can claim something called a “prescriptive easement.”
Prescriptive easements can come about through simple situations. For example, a person crosses a portion of your land without your permission every weekday on his/her way to and from work. After 21 years, you put up a fence that says “no trespassing,” yet said person continues to cross. Unfortunately, by law, you acquiesced to that person’s use of the land and, at the 20th year, that person now has a right to use what they have enjoyed uninterrupted for 21 years. It is a limited right; the person cannot exclude the landowner or anyone else, but can enjoy that particular use. It even applies should you decide to purchase a parcel of land that already contains a prescriptive easement.
Nationwide Financial purchased a parcel of land and found that the owners of the next parcel overused the northwest corner as a driveway. Both parcels would be landlocked absent a gravel road easement. Michael and Laura Pobuda bought their home 18 years prior to Nationwide’s purchase and 21 years prior to Nationwide’s suit. The landowner prior to the Pobudas lived for 15 years on the same property and used the northwest corner of present-day Nationwide’s land. The Pobudas and previous landowners never sought permission for the use of the northwest corner. Nationwide sought a judgment from the court that the Pobudas’ use of its land represents an unlawful trespass. The Pobudas asserted that they had a prescriptive easement; Nationwide disagreed.
Both the circuit court and the appellate court agreed with Nationwide, focusing on the exclusivity element. They characterize exclusive as depriving the owner of all use and found that the Pobudas did not fulfill that requirement. Therefore their claim failed. The Illinois Supreme Court disagreed and found that exclusive use does not need to deprive the owner of use, but only that the right of the person asserting the easement does not depend upon a like right in others. In other words, the Pobudas use of the land was not subject to permission or other rights.
Nationwide also argued that the use was not adverse but, rather, a neighborly courtesy extended from one the previous owners, long ago. While the theory is sound, the neighborly courtesy is a form of permission which would defeat an adverse claim, the facts do not support that theory in this case. ILSC found that the origin of the right of way lacked evidence to suggest it was permissive, in-fact, the origin of the right of way is unknown. The Court concluded that as a matter of law the Pobudas satisfied the elements of exclusivity and adversity necessary to establish a prescriptive easement claim.