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Express and Implied Easements

If you have either an express or implied easement, it means you have a legally binding, non-possessory "interest" in another party's property. It's probably easier to explain by way of example. Let's assume that the only way to access a public beach is through someone's private property (a driveway, perhaps). The neighbors have a right to access the beach, but must trespass in order to do it. An easement gives them the legal authority to do so, but in a limited way that is non-possessory and non-disruptive to the property owner.    

A key question in the law of easements is whether the right to use the land (the easement itself) is express or implied. As is explained in more detail below, the main difference between the two is that an express easement is created by an agreement or document, while an implied easement arises through certain circumstances.

Express Easements

An express easement is created by a deed or by a will. Thus, it must be in writing. 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 arrangement is known as an "easement by reservation." Regardless, an express easement is one that 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 don't do something with a given piece of property, such as building a structure that would block a neighbor's view.

Implied Easements

As mentioned above, even when no document or agreement has created an express easement, an easement right may still be understood (or "implied") by a situation or circumstances. Generally, these types of easements are applicable to parcels of land that were once part of a larger parcel of land, such as a three-acre lot split into six separate parcels. To create an easement by implication, three requirements must be met:

  • The easement must be at least reasonably necessary to the enjoyment of the original piece of property.
  • 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.
  • 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. A prescriptive easement may be granted under the legal principle of adverse possession.

Have Questions About Easements? Get a Free Real Estate Attorney Match

Easements are a great legal tool for accessing certain areas that otherwise would require encroachment on other areas. Sometimes they're implied, but other times it's necessary to go through a formal proceeding. The best way to sort out your particular needs with respect to easements is to speak with a real estate lawyer. Get a free attorney match today.

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