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Express and Implied Easements

If you have either an express or implied easement, it means you have:

  1. A legally binding, non-possessory "interest" in
  2. Using another party's land or real property in a limited way

For example, let's assume a person’s land is on a landlocked parcel. Here, the only way for them to access a public beach is through someone else’s private property. A right of way may be required to use a private driveway or other roadway. The neighbors have a right to access the beach but must trespass to do so. An easement gives them the legal authority to do so, but in a limited way that’s:

  1. Non-possessory; and
  2. Non-disruptive to the property owner

A key question in the law of easements is whether land use (in the easement) is express or implied. As explained further below, the main difference between the two is that:

  • An express easement is created by a written agreement or legal document
  • An implied easement arises through certain circumstances

With all easements, a servient estate (a private land) serves a dominant estate (which is given dominant rights over said private land). For example, a servient homeowner may grant a utility company limited dominance to allow the company to run power lines across their land.

Express Easements

An express easement is usually created by a grantor’s deed or other express grant. So, it must be in writing to reflect the express intent of the parties. An express easement can also be created when the owner of a certain piece of property conveys the land to another, but saves or reserves an easement in it.

This property rights arrangement is known as an "easement by reservation." Regardless, an express easement is affirmatively entered into through documented legal means.

Express easements also may be characterized as either "affirmative" or "negative" easements, depending on the nature of the agreement. For instance, an affirmative easement grants the easement holder access to a stated portion of another's property for a specific purpose (such as accessing the local public beach). But a negative easement is a legally binding promise to the easement holder that they won’t do something with their piece of property. For example, a landowner may be prohibited from building a structure that would block a neighbor's view. A private property owner might also grant a negative easement to the government to accommodate zoning laws.

Implied Easements

Suppose no document or agreement has created an express easement. Still, an easement right may still be understood (or "implied") by a situation or circumstance. Generally, these types of easements apply to parcels of land that were once part of a larger parcel of land. For instance, a three-acre lot may later be split into six separate parcels.

To create an easement by implication, three requirements must be met:

  1. The easement must be at least reasonably necessary to the enjoyment or prior use of the original piece of property.
  2. The land must be divided (or "severed") so that the owner of a parcel is either selling part and retaining part or subdividing the property and selling pieces to different new owners.
  3. The use for which the implied easement is claimed must have existed prior to the severance or sale.

A related type of easement—the prescriptive easement—typically arises from a misunderstanding of property boundaries that persists for a certain period of time. For example, maybe your neighbor's fence was two feet over the property line for the past 20 years before you discovered the error. If the prior use was continuous for a sufficient period, a prescriptive easement may be granted under the legal principle of adverse possession.

Get Legal Help With Your Express and Implied Easement Concerns

Easements are a great legal tool for accessing certain areas that would otherwise require encroachment on other areas. Sometimes, they're implied, but other times, a formal proceeding is necessary. The best way to sort out your particular needs with respect to easements is to speak with an experienced real estate lawyer. A real estate attorney can provide you with legal advice and disclaimers on important real estate law matters that affect land use.

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