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Express and implied easements

On Behalf of | Feb 25, 2020 | Real Estate Litigation |

A parcel of real estate is meant to last forever, but the people involved and their uses for the property change over time. Sometimes, property owners come up with a great solution to a problem they face, but years later this solution becomes a problem for future owners.

An easement is an interest in property held by someone other than the property owner. A typical example is a pathway to a public beach that goes across private property. The owner’s neighbors have the right to visit the beach, but the only practical way for them to get there is by walking across the property. Without an easement, they would be trespassing every time they do this. An easement is one way to give the neighbors permission to use the pathway for their limited purpose of reaching the beach, in a way that is not disruptive.

Perhaps the best way to create an easement is by putting it in writing as part of a deed or a will. This is known as an express easement. Like most interests in real estate, an express easement is documented in writing by parties who understand what they are doing, and so it will hold up in court if a dispute arises later on.

However, an easement can also be implied. This is one quality that can make easements different from other types of interest in property.

In an implied easement, the parties behave as though they have an express easement, but have never actually agreed on the easement.

In the example above of the pathway to the beach, imagine the neighbors use the pathway almost daily to get to the beach. The owner knows they are using it and does nothing to stop them. Years go by. The property owner divides her property in two, and a new owner now owns the part of the property with the pathway on it. One day, the new owner decides he doesn’t want the neighbors walking across his property anymore. He builds a fence across the pathway, blocking their way.

This means the neighbors no longer have a practical way to get to the beach. It’s irritating to them, and it also effectively lowers the value of their own property. After all, they bought the property with the belief that they would have easy access to the beach. They decide to take the owner to court. The court determines that, although there was no express easement, the existence of an easement was implied.

Before finding an implied easement, a court will need to find several requirements. First, the easement must be reasonably necessary to enjoy the original property. Second, the original property must have been severed — that is, divided and sold. Third, the use of the implied easement must predate the severance and sale.

This has been just a brief introduction to the concepts of express and implied easements. The issues can get very complicated. An experienced real estate attorney can help property owners understand their rights and options with regard to easements.