Easement by Implication

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“It is the right of a non-owner to use a piece of property. Appurtenant easements run with the land and benefit another parcel. Gross easements benefit individuals or legal entities and do not run with the property. A deed of land usually establishes easements by granting them expressly.”

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Easement by Implication

The property that benefits from an easement is the “dominant estate,” and the property through which the easement runs is the “servient estate.” It is possible to create an express easement by using another legal document, such as a will. Other easements that affect property include easements by implication or prescriptive easements.


Easements: What are they?

There are several types of easements, including walking paths and utility lines. Easements grant one person limited access or use to another person’s land. We can call land with an easement a “dominant estate,” the land with the easement is also called the “servient estate.” Easements can be temporary or permanent. They do not grant ownership but somewhat limited access.


Different Types of Easements

In property law, easements come in various types. Here are some easement by implication example:


Easement of Necessity:

A landlocked property may need an easement to reach a public road or utility line through an adjoining property.


Easement by Prescription:

This easement occurs through continuous, open, and uninterrupted use of someone else’s property for a specifically prescribed period.


Easement by Grant:

An easement is granted by creating a written agreement between the grantor and the grantee. The terms and conditions of the easement appear in the written agreement.


Easement by Reservation:

An easement by reservation happens when the owner of a property sells or transfers the ownership of the property but retains the right to use certain parts or areas.


Easement in Gross:

There is no connection between an easement and the ownership of any specific property. And it does not transfer with the sale or transfer of the property. It benefits one particular individual or entity rather than a particular property.


Affirmative Easement:

There are several affirmative easements, including access, driveway, and utility.


Negative Easement:

An easement with a negative easement prohibits specific actions or activities on the property owner. For example, blocking sunlight or obstructing views.


Utility Easement:

In utility easements, utility companies such as electric, water, and gas can access a property to install, maintain, or repair utility lines or equipment.


Conservation Easement:

The purpose of conservation easements is to protect a property’s natural resources, scenic beauty, or historical significance.


Recreational Easement:

A recreational easement permits public access to private hunting, fishing, or hiking property.


The Implications of an Easement

What is an easement by implication definition? It is essential to look out for easements by implication. These are not recorded in the registry of deeds but have arisen by necessity or implication in real estate. This type of easement does not appear in the registry of deeds.

A property’s expansion and usage can be affected depending on the easement. Real estate attorneys can investigate whether a property you are considering buying has easements by implication that are not recorded.

The easement, by implication, occurs when there is no recorded easement. But the circumstances suggest that one exists, too. They commonly arise when someone divides a property parcel and conveys part of it to someone else. An easement by implication arises when it is apparent and obvious that one part of the parcel serves for the benefit of the other. And this prior use is part of a pattern that appears to continue.


Create an easement by necessity.

It is also possible to create an easement by necessity if the dominant estate and the servient estate used to belong to the same person or people. But the servient estate has a severance from the dominant estate due to a conveyance to another owner. Still, the dominant parcel needs to use the servient estate for the reasonable enjoyment of the property.

The owner may be unable to access the main road unless they drive through an access road that passes through the servient estate. For example, an easement can be created by implication if the dominant parcel is landlocked.


Use recorded plans to establish an easement.

It may also be the case that an easement may exist if. For example, one person owns a parcel, separates it, and conveys both parts to another person. Still, a shed that belongs to one parcel crosses over a boundary into the other parcel.

There may be a need to use recorded plans to establish an easement by implication in part. According to a recorded plan that shows a street on the land conveyed by the grantor. The grantor and anyone claiming under the grantor may deny the street exists. For whatever distance appears on the plan whenever the grantor conveys it.


Ease by Implications Requirements

A conveyance, by implication, arises not from a formal agreement but from the circumstances surrounding the use and ownership of land. To establish a conveyance by implication, the following conditions must exist:


Ease by Implications Requirements


Ownership Unity and Severance:

As a condition for recognizing an easement by implication, the dominant and servient estates. The property over which the easement runs) must have been owned by the same individual or entity at a particular time.


Reasonable vs. Strict Necessity:

Necessity plays a crucial role in establishing the easement. It can fall into two levels:

  • Strict Necessity: Whenever an easement is essential for the use or enjoyment of the land. For example, when a piece of land lies without access to a public road, one might grant it.
  • Reasonable Necessity: Unlike the previous standard, this standard is less restrictive. The easement is unnecessary here, but it makes the property easier to use and enjoy. Even if other longer routes are available, a shortcut is used historically through a neighboring property. We can consider it reasonable.


An apparent and continuous prior use:

  • A prior use that establishes an easement by implication must have been:
  • Continuous: Use was ongoing and consistent over time rather than sporadic or occasional.
  • A regular pathway or a shared driveway would be apparent uses because they weren’t hidden or secretive.


Prescription versus Implication Easement

Both implication and prescription are non-expressive ways to get easements, meaning neither requires a written agreement to proceed. Nevertheless, they have distinct features and requirements.


Acquisition timeframe:


·         Easement by implication vs necessity:

In this circumstance, the easement only arises after severing a single property into two or more parcels. Since no specific duration of use is needed, it is instead based on the historical use or necessity at the time of severance.


·         Easement by Prescription:

In many states and localities, the easement occurs following a period of continuous use referred to as the “prescriptive period, which typically ranges between five and twenty years.


The nature of the use (adverse or necessary):


·         Easement by Implication:

This easement is primarily to protect the historical or current use of the land. The use does not have to be against the wishes of the servient landowner. Instead, it pertains to an existing use or access that has existed historically or is necessary for reasonable use.


·        Easement by Prescription:

There must be an adverse use, which means it occurs without the permission of the servient landowner. This use must be open, notorious (prominent), and continuous throughout the prescriptive period. As a result of the use being unchallenged for the duration of the prescriptive period, the legal right to use this land accrues.


Efficiencies and Burdens of Easement by Implication

It is important to note that easements come with benefits and burdens, as with other easements. These benefits usually flow between the dominant estate (the property benefiting from the easement) and the servient estate (the property burdened by it).

In the dominating estate, there are several advantages:


Enhanced Accessibility:

For example, an easement provides access to a public road for a property.


Increased Property Value:

Buying properties that are accessible or have access to essential services can increase the value of the dominant estate.


Legal Protection:

By recognizing an easement by implication, the dominant estate acquires a legal right to the use, preventing subsequent owners of the servient estate from denying it.



In the absence of a written agreement, easements, thereby, offer more flexibility as compared to express easements.


The Servient Estate Has The Following Responsibilities:


Limited Use:

It might be impossible for the servient estate to build over a path recognized as an implied easement if they refrain from doing so.


Maintenance Obligations:

The servient estate may be responsible for maintaining the easement area so that the dominant estate can use it according to local laws.


Potential Decrease in Property Value:

In the case of an easement that significantly restricts a property’s potential use or development, the easement may lower the market value of the servient estate.


Legal Disputes:

There can sometimes be legal disputes over easements by implication due to the unwritten nature of easements. The servient estate might challenge the easement’s existence or extent.


The Termination of the Easement by Implication

Under certain conditions, easements by implication, which develop without a written agreement, can be terminated. Below are a few examples:


Necessity changes:

  • Nature of the Necessity: It is possible to terminate the easement if it exists by implication due to a strict necessity. It is possible to terminate an easement if that necessity no longer exists. When a new public road provides direct access to a landlocked property, an implied easement might be considered unnecessary and ceased.
  • Alterations to Property: It is possible to terminate an easement if significant changes have occurred to the dominant estate that make it unnecessary. If this is the case, it is possible to terminate the easement.


Non-use or abandonment:

  • Intentional Abandonment: To terminate the easement, the dominant estate must intend to relinquish the right. This is more than non-use; specific actions or indications must demonstrate this intent.
  • Prolonged Non-use: Some jurisdictions see a prolonged period of non-use of an easement as an implied abandonment. However, the duration and conditions vary from jurisdiction to jurisdiction.


Agreement between the parties:

  • Express Agreement: It is often necessary to formalize the termination of an easement in writing to avoid future disputes. Both the dominant and servient estates can mutually agree to terminate the easement.
  • Implied Agreement: Sometimes, both parties’ actions indicate that they are on the same page regarding ending the easement. It might appear as an implicit agreement to terminate an easement if, for example, the servient estate constructs a building over a pathway used as an implied easement without objecting or challenging it.


Easements Compared to Other Types

Various types of easements exist, each with unique characteristics and requirements. Here are some comparisons between easements by implication, easements by necessity, easements by estoppel, and easements by prescription:


Easement by Implication:


Resulted from historical usage or circumstances surrounding a property division.



Usually, it requires the continuation or continuation of ownership after a separation of ownership occurs.



The relationship can be permanent unless it ends for reasons such as changes in necessity, abandonment, or mutual agreement.


Easement by Necessity:



Succumbs to an absolute need, usually when a property becomes landlocked.



Historically, dominant and servient estates had joint ownership. The easement is necessary to permit reasonable use and enjoyment of the land.



It usually lasts as long as needed but can end without needing it.


Easement by Estoppel:



This results from one party (usually the servient estate) falsely representing or allowing the dominant estate to believe they have a right to use the property and then acting on that belief to their detriment.



The easement must incorporate explicit representations or assurances based on action taken based on those representations, which will cause significant harm if denied.



Depending on the circumstances, it can be temporary or permanent. If the circumstances leading to the easement by estoppel change, it might expire.


Easement by Prescription:



Occurs when someone uses another’s land for a specified time without the owner’s permission.



Adverse, continuous, open, and uninterrupted usage throughout the prescriptive period.



It can last a lifetime unless abandoned or terminated legally.


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Hedy Ghavidel

HEDY GHAVIDEL Managing Attorney  Roseville Office  1-866-471-6981  info@attorneysre.com Bio...

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