What is an Implied Easement: Important Legal Aspects

There are situations where individuals or a single person might have the legal rights to pass through land owned by someone else. In these situations, a property owner might be required by law to allow the other parties or people who live nearby to use their land as a driveway or walkway, effectively as an access point.

Some parties come to an agreement ahead of time and never write anything down which works well until part or all of the property through which the easement runs is sold or bequeathed to someone else. In these situations, the court might have to get involved to determine whether the agreement fits the definition of an implied easement.

What are the differences between expressed and implied easements?

An easement of any kind is a legal interest in another person’s property. When evaluating the laws of easements, the biggest question is whether the easement was express or implied.

The differences between expressed and implied easement generally have to do with the circumstances. Accessing a public beach by cutting through somebody’s backyard can constitute an easement if there is no other way to get to that public beach.

What are expressed easements? 

Expressed easements, as the name suggests, have been properly expressed generally written down in an agreement. This can include a covenant that runs with the land or an agreement that includes the easement for any subsequent beneficiaries, inheritors, or purchasers of the property. most expressed easements are created by a will or a deed. They are literally written into the deed for the property that reserve the easement for any future use. Similarly, a property owner can include a negative easement in the deed or there will which specifically says that certain things cannot happen to the property.

For example: A property owner who divides their parcels and sells the three parcels that run alongside the road might include an affirmative express easement that allows the renter in the back property to drive through the driveways on the front three parcels and also include a negative easement that prohibits the front three parcels from blocking that road or building a third-story on to their house which would block the view of the property behind.

What are implied easements? 

Implied easements are generally not written down in a formal agreement but rather implied based on the structure or a verbal agreement. Generally, these have to meet specific requirements in order to be considered an implied easement.

For example: A property owner might sell the back half of their lot, which was all part of one big property in the past, and now in order for the people in the back half of the lot to get in and out of their property, it’s implied that they have to cut through the private property of the person who owns the front lot.

The requirements to meet an implied easement

Implied easements are easements that are understood based on the circumstances. Most of the time these have to do with pieces of property that were once a single property but have since been subdivided into separate parcels of property.

Implied easements by necessity

Implied easement by necessity means that it is absolutely necessary. There may not be any paperwork or legally signed agreements between the two parties but if there is no other way to get on and off the space, because one piece of land is already a joined by a public space, parking lot, or another business, it might be absolutely necessary to have an easement and if you choose to invest in a property that has an easement, you will have to abide by its terms. Conversely, if you are investing in a property that will need an easement, you will have to work with any surrounding property owners to establish one.

What must be shown to establish an implied easement?

There are three key things that have to be shown for an implied easement:

  1. First, the easement has to be reasonably necessary in order to enjoy the property.
  2. Second, the land has to have been divided so that the owner of the parcel is selling part of their land and subdividing the other pieces to other owners.
  3. Third, the intended use of the implied easement has to have existed prior to the current sale, such as an agreement to use the front property along the fence line to drive to the back property.

Final Thoughts

Whether you are a current property owner or you are looking to purchase a new property, there might exist special circumstances where there is an implied easement between the current parties even if there is no formal legal agreement. You might have restrictions on the use of land with anyone who has an implied easement. Consider reaching out to an attorney to review how to proceed with an implied easement and what steps to take next.

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