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.
Easement by Grant: Getting It In Writing
In some cases, a landowner sells a section of real estate to a buyer who also gets an easement on land which the seller continues to own. The reverse can occur, too: the seller reserves access to a certain place on the sold land — maybe a pathway or driveway, or access to a lake or a trail.
For the sake of clear title, this agreement should be put down in writing, and filed with the county recorder. The quitclaim or other deed granting the easement will:
- Identify the easement’s grantor and grantee.
- Include a legal description of the property with the easement, and of the easement itself.
- State the reason for the easement, and whether it’s an appurtenant or in gross easement.
What’s the difference? An appurtenant easement conveys the right to use adjoining property that runs with the land (stays on the parties’ titles permanently). If an easement is temporary, the time limit should be stated on the parties’ deeds. An easement in gross benefits an outside entity, like a utility company. It might need a renewed agreement when the property is deeded to a new owner.
Implied Easement: When the Landowner Divides Land, But Forgets to Mention the Right-of-Way
Activity on a piece of land can create an implied easement once the landowner sells, even without a written grant. Perhaps the landowner divided and sold a portion of the property with an obvious intention to reserve a certain right of way on either the piece that was sold, or the piece that the landowner kept.
Intent is key, because an implied easement is a sort of “whoops!” easement. It would have been written down, if the landowner had thought about the issue when conveying a deed. So the implied easement exists to preserve a use that both parties wanted to permanently maintain, but inadvertently left out of the legal documents. Recognizing this type of easement is critical in a purchase transaction, as the title insurer has to issue its policy to account for the segment of land that constitutes an easement.
The implied easement has to have these specific characteristics present:
- One person previously owned the two parcels that are now divided and exist next to each other. If there was no division and transfer by a single owner, there can’t be an implied easement. (There are other kinds of easements, though, that can be created on two historically separate properties.)
- It’s obvious that part of one current owner’s segment was used for the benefit of the other’s property, even before the title transfer that gave rise to the easement. In other words, for someone to be entitled to a right of way, that right of way must have been regularly used when the parcels had a common owner, before the land was divided.
- The right of way is a permanent need. The use was not a merely temporary arrangement.
- Creating the easement is reasonably necessary. An easement would not be reasonably necessary if the owner of the adjacent property could come up with a reasonably simple workaround for the need.
In short: The easement is implied by necessity when the seller of one section of land removes the adjacent parcel’s access to a public roadway, water source, utility, or some other needed benefit. An implied easement is an example of an appurtenant easement.
Is an easement by necessity only created through a purchase transaction? In fact, it can also occur through a living trust or a last will and testament. Imagine your will leaves land to your beneficiary, Sam. Access to the house is a driveway over the abutting land, which you will to a second beneficiary, Joyce. Even though Joyce’s land doesn’t come with a formal easement, a right of way for Sam is implied. In this case, again, there was one owner who owned all the land, divided it, and the implied easement is necessary for Sam to actually use the property.
“See You in Court!” Claiming an Implied Easement
What if one party relies on an implied easement, but the new neighbor won’t play ball?
Say you’ve acquired a property next to a cornfield. You hire landscapers to do a makeover of your new real estate. In the process, they level a slope next to the cornfield. Then you find out that the corn grower relied on that slope as a graded border for water, which had long run from a water line installed at one end of it.
Because there is no other practical way for the cornfield to get water, the grower is claiming an implied easement, and telling you that the graded slope will have to be reinstalled immediately. But you check your title documents, and they say nothing about an easement. Do you have to agree to the neighbor’s demand?
If the same property owner once owned both your land and the cornfield, and the cornfield always got water by way of the grated border, then the corn farmer has a strong case for implied easement over your property. This is so, even though your deed and recorded documents make no mention of the water easement. Why?
- Because the grading was obvious and you could see (or should have seen) what it was.
- Because the conduit was used for sending water to the field before you bought your parcel.
- Because the grading was meant to be used for the field indefinitely (not temporarily).
- Because the cornfield owner cannot get the necessary water by alternative means.
It looks like the cornfield owner could win that easement case in court.
What could make a judge find for you, and not for the cornfield owner? If there’s no indication, either in the records or upon a reasonable inspection of the property, that the adjacent landowner had and relied on a right of way through your land, then the court could decide you are a bona fide purchaser and not subject to an implied easement.
State law controls easements, and small differences in facts can change the outcome of a case. If you believe you have a valid dispute over an implied easement, consult with a local real estate attorney. Often, a friendly attempt at negotiation brings about the best possible outcome for all involved; an experienced attorney can advise.
Perhaps the most important moral of the whole story? Always create your deed in writing! Learn more about creating your easement deed on Deeds.com by selecting your state, and going to “Easement Deed” through the left-hand menu.
Supporting References
Deeds.com: The Different Types of Easement Deeds for Real Estate (Mar. 6, 2012).
Fred Crane, et al. for First Tuesday Journal: Created by Grant or Reservation (May 2, 2022). See also: Conduct Creates an Implied Easement (May 6, 2022; internal citations omitted).
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