What Is an Implied Easement?

Updated May 3, 2024
5 min read
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In specific cases, an individual or a group may be legally entitled to traverse land owned by another party. Under the legal mandate, the landowner may be compelled to permit neighboring persons or entities to employ their property as a means of ingress and egress, for example, a path or driveway.

Often, the concerned parties reach a mutual understanding informally without papers. This is a practice that generally suffices until the land changes hands through sale or inheritance. In these instances, judicial intervention may become necessary to ascertain if the unwritten agreement qualifies as an implicit easement under the law.

Let’s read about what is an implied easement, its requirements, and its types.

Difference Between Expressed and Implied Easement

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 definitions are about 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 is an express easement?

The express easement definition suggests this be a type properly written down in an agreement. This kind of easement 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 last will and testament or a deed. They are written into the deed for the property that reserves the easement for any future use. Similarly, a property owner can include negatively expressed easements in the deed or last will, which specifically says that certain things cannot happen to the property.

For example: A property owner, upon splitting their land into parcels and selling three sections, may grant a clear and direct easement to the tenant of the rear parcel to use the driveways across these three sections. This owner can establish a restrictive easement to ensure that the aforementioned road remains unobstructed. Potential construction of homes on the front parcels may obstruct the view from the back property.

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. Implied easements have to meet specific requirements.

For example: A homeowner may opt to divest themselves of the rear portion of their land, a section that once comprised a larger unified parcel. Consequently, for the inhabitants of this newly segregated rear segment to access their property, they must traverse the private land belonging to the individual who retains ownership of the front portion of the lot.

Implied Easement Requirements

Implied easements are understood clearly based on the circumstances. Most of the time implied easements 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 easements by necessity mean may not require 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 necessary to have an easement by implication. If you choose to invest in a property that has an easement, you will have to abide by implied easement definition and 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?

Implied easements are generally supported by three following requirements:

  1. The easement has to be reasonably necessary in order to enjoy the property.

  2. 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. 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.

Implied easements provide essential access to the property which may not have been outlined in writing at the time of the sale. To be upheld in a court of law, easements must meet the aforementioned requirements. If the easement is necessary for the reasonable enjoyment of the property and was used before the property was sold, an implied easement could help landowners resolve their disputes, if any.

Final Thoughts

What is an implied easement for land use? If you own property or plan to buy one, implied easement could affect your land use, even without a written agreement. An implied easement may grant others rights to use your land in specific ways. Consult with an attorney to understand how the easement impacts you and to determine the best course of action.

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