Condominium Law FLASHPOINTS July 2022

Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago
312-588-5000 | E-Mail Kenneth Michaels, Jr.

Interpreting Language in Condo Association's Easement Agreement

This month’s column examines a recent Rule 23 opinion that does not turn on a question of condominium law but is instructive for condominium practitioners in considering easement issues. Divarco v. 5935 N. Odell Condominium, Ass’n, 2022 IL App (1st) 210423-U. This case presents a question of interpreting language in an easement, which the parties agreed was unambiguous.

The Easement

An easement agreement was recorded on a 25-by-31-foot rectangle of the northeast corner of the defendant condominium association’s land “for parking and driveway purposes for the use of” an adjacent parcel, which at the time of litigation was owned by plaintiff Emily Divarco. 2022 IL App (1st) 210423-U at ¶5. NOTE: Although the opinion refers to the encumbered land as being owned by the association, likely the land was owned by all the unit owners as tenants in common and was administered by the association pursuant to the Condominium Property Act, 765 ILCS 605/1, et seq. The easement declaration stated that the “easements shall be used in common by the present and future owners, occupants and mortgagees of, and all persons now or hereinafter acquiring any interest in the respective parcels hereinbefore described.” [Emphasis added.] 2022 IL App (1st) 210423-U at ¶5.

Public records show that the association was created in 1994. Beginning in 1999, the association began occasionally parking vehicles on the easement. Beginning in 2014, the association started parking cars on the easement (which contains three parking spaces) on a regular “first come-first served” basis. In 2018, the association painted diagonal marks on the parking spaces and labeled spaces with unit numbers. Id.

The Lawsuit

After months of painting over each other’s work on the parking spaces, Divarco filed a declaratory relief action on July 1, 2019. 2022 IL App (1st) 210423-U at ¶¶5 – 6. Count I sought a determination that the parking spaces are exclusively hers to use for her tenants and occupants and for removal of signage around the parking spaces. Count II sought damages for trespass and obstruction. 2022 IL App (1st) 210423-U at ¶6.

Divarco moved for summary judgment on Count I, and the association moved for judgment on the pleadings arguing that the easement was “meant for common use between the parties.” Id. The trial court entered judgment in favor of Divarco on Count I, finding that concurrent use of parking spaces is not viable because “[p]arking spaces in the cities are commodities which cannot be used simultaneously.” Id. The trial court also noted that the association had removed one parking space by painting over it entirely. The trial court found that the language referring to easements being used in common was a reference to the easement running with the land and passing in time. After further briefing, including the association’s motion for reconsideration and another motion to vacate, both of which were denied, Divarco filed a motion to dismiss Count II voluntarily, which the court granted in March 2021. 2022 IL App (1st) 210423-U at ¶8.

The Appeal

The appellate court’s opinion sua sponte raised the question of whether it had jurisdiction presumably because of the voluntary dismissal of Count II. 2022 IL App (1st) 210423-U at ¶10. “An order or judgment is final only if ‘it disposes of the rights of the parties, either on the entire case or on some definite or separate part of the controversy.’ ” 2022 IL App (1st) 210423-U at ¶11, quoting Fabian v. BGC Holding, LP, 2014 IL App (1st) 141576, ¶12, 24 N.E.3d 307, 388 Ill.Dec. 399. As the order granting voluntary dismissal disposed of the rights of the parties or the entire case, it was therefore a final order under Supreme Court Rule 301, and the appellate court had jurisdiction. 2022 IL App (1st) 210423-U at ¶11.

On appeal, the association argued that the trial court erred in granting summary judgment for the plaintiff by using extrinsic evidence, namely by considering the parties’ use of the easement as well as logistical issues presented by sharing the easement, in violation of Illinois easement law. 2022 IL App (1st) 210423-U at ¶12. The standard of review on grants of summary judgment is de novo. 2022 IL App (1st) 210423-U at ¶13.

The appellate court recognized the following principles of law in its analysis:

1. “An easement runs with the land when ‘every successive assignee of the land is entitled to enforce the covenant, and entitled to the benefits or obligations passing with the covenant, if the act to be done or permitted concerns the land or the estate conveyed.’ ” 2022 IL App (1st) 210423-U at ¶7 n.1, quoting C-B Realty & Trading Corp. v. Chicago & North Western R.R., 198 Ill.App.3d 926, 556 N.E.2d 634, 636, 145 Ill.Dec. 16 (1990).

2. The interpretation of easements involves principles of contract law. 2022 IL App (1st) 210423-U at ¶14, citing River’s Edge Homeowners’ Ass’n v. City of Naperville, 353 Ill.App.3d 874, 819 N.E.2d 806, 809, 289 Ill.Dec. 310 (2004).

3. The interpretation of an easement is a question of law, and, unless the easement language is ambiguous, the interpretation should be without use of extrinsic evidence. 2022 IL App (1st) 210423-U at ¶14, citing Hahn v. City of Kane, 2012 IL App (2d) 110060, ¶12, 964 N.E.2d 1216, 358 Ill.Dec. 194.

4. The land benefiting from the easement is the dominant estate, and the land burdened by the easement is the servient estate. 2022 IL App (1st) 210423-U at ¶14, citing Chicago Title Land Trust Co. v. JS II, LLC, 2012 IL App (1st) 063420, ¶32, 977 N.E.2d 198, 364 Ill.Dec. 709.

5. “The law of easements is based on a principle of concurrent rather than exclusive use.” 2022 IL App (1st) 210423-U at ¶14, quoting Village of Round Lake v. Amann, 311 Ill.App.3d 705, 725 N.E.2d 35, 47, 244 Ill.Dec. 240 (2000).

6. “Absent an agreement to the contrary, the servient owner may use his property for any purpose consistent with the dominant owner’s enjoyment of his easement.” 2022 IL App (1st) 210423-U at ¶14, quoting McMahon v. Hines, 298 Ill.App.3d 231, 697 N.E.2d 1199, 1206, 232 Ill.Dec. 269 (1998).

7. “However, easements are to be construed in a way to carry out the intention of the parties.” 2022 IL App (1st) 210423-U at ¶14, citing 572 S. Clinton, LLC v. Westloop Entities, LLC, 2014 IL App (1st) 131401, ¶28, 7 N.E.2d 756, 379 Ill.Dec. 918.

The appellate court’s analysis began with a review of the trial court’s analysis and approved the same. While acknowledging that concurrent use of the easement is favored in the law, the trial court found that such concurrent use was not feasible here. The trial court did not look to extrinsic evidence. While a driveway may be used concurrently, parking spaces may not. The dominant estate has the right to use the easement and exclude the servient estate’s use when such use unreasonably interferes with the dominant estate’s use. 2022 IL App (1st) 210423-U at ¶15. Reasonable use by the dominant estate may be exclusive to the servient estate’s use. Id., citing Chicago Title Land Trust, supra, 2012 IL App (1st) 063420 at ¶76. The trial court’s conclusion was “reasonable and consistent with established law.” 2022 IL App (1st) 210423-U at ¶16. Parking vehicles cannot occupy the same space concurrently. The “in common” language in the easement “simply highlights that the easement was to run with the land.” Id. The association’s argument that multiple vehicles could share the same space simultaneously “leads to an illogical result that is not feasible in actuality.” Id. The appellate court affirmed the trial court’s analysis and grant of summary judgment. 2022 IL App (1st) 210423-U at ¶18.

For more information about condominium law, see CONDOMINIUM LAW: DAILY OPERATION CHALLENGES (IICLE®, 2021). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit

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