What Is an Implied Easement in Real Estate?

An implied easement is a legally recognized property right that exists even though it is not written into a deed or contract. These easements arise from the actions, history, or circumstances surrounding how the property has been used. Courts recognize implied easements to ensure that land continues to function as intended when ownership changes.

How an Implied Easement Works

An implied easement is created when property use clearly indicates that one parcel must rely on another, even if no written agreement exists. Courts determine whether the easement is necessary for reasonable use of the property and whether the parties historically treated the access or use as permanent.

  • Often arises when a property is divided and the original use relied on adjoining land
  • Does not require a written agreement or recorded document
  • Court must find that the easement is reasonably necessary
  • Historical, continuous use is a major factor in establishing validity

Example of an Implied Easement

A property owner sells half of their land that has always been accessed by driving across the other half. The deed does not mention access rights, but both parties understood that the roadway would continue to be used. When a dispute arises later, the court recognizes an implied easement allowing continued access.

Implied Easement vs. Easement by Necessity

  • Implied easements arise from prior use or conduct, even without written documentation
  • Easements by necessity arise because a property would otherwise be unusable (e.g., landlocked)
  • Both involve rights over another property (servient estate), but implied easements do not require total necessity
  • Courts look at historical use for implied easements; necessity focuses on access needs

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