What Is an Implied Easement, and Could Your Property Have One?

An easement gives someone the right to use or control part of somebody else’s land. An easement can be deliberately created through the land owner’s permission. The parties can formalize this by writing up a grant deed, a quitclaim, or an easement deed.

Permanent easements can also be created by a court order, or through deed restrictions.

But sometimes, an easement is just a mutual understanding that the person next door is using part of the owner’s land. An implied easement might exist, then. But only when the land is divided and transferred.

Here, we look at the making of an easement — and the signs that an implied easement has been created.  

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Access Matters: Getting an Easement for Landlocked Property

Image of a locked gate with a road closed sign on it.

Real estate without legal access to a public road is called landlocked property. Title insurance policies exist to protect mortgage lenders and homeowners from the costs of dealing with burdens on a property’s title. Standard title insurance usually covers lack of access. This means it can help pay for the costs associated with obtaining an easement if a house isn’t on a public roadway.

But title policies, individual situations, and state laws vary. Let’s take a look.

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The Real Estate Easement: A Guide and Glossary

Image of a plat map for real estate showing an easement. Captioned: The Real Estate Easement: A Guide and Glossary

An easement is a right to use another’s land for a specific purpose not inconsistent with the landowner’s simultaneous right to hold the same property. The word is derived from the Old French term aisier: to assist. This legal right to use land that is not one’s own can be acquired in several ways: 

  • By grant (owner permission).
  • By prescription (longtime use).
  • By necessity. The law protects access; a property without street access would be practically useless. Thus, the landowner must allow necessary access.

A state’s Statute of Frauds typically requires that transferring any interest in real estate, even a grant of an easement, is only made binding through a signed, written agreement. Yet in some cases an easement is implied. Because the law protects access, a court may find access granted by implication, depending on the facts of a given situation.

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The Different Types of Easement Deeds for Real Estate

An easement is the certain right to use another person’s real property for a stated purpose without possessing it. An agreement of this type requires at least two parties. The creation of an easement is handled the same way as other documents of conveyance. Easements can also be written into a deed of conveyance, or may also be transferred with the deed. The three major types of easements are appurtenant easements, easements in gross, and prescriptive easements.

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