Implied Easement

An implied easement is an unrecorded easement in favor of one owner by law when the easement is necessary, such as for light, air, or access to a land-locked parcel. This is a fancy way of saying that it is an easement that is created by the courts.

The idea behind implied easements is that courts understand that people are not always going to do things the “right way.” Shocking, I know!

Sometimes people are not fully informed, sometimes lawyers mess up, and sometimes even the best neighborly relationships go bad. In the end, one property owner may be left without a driveway that he had always used since he bought the property, just because his neighbor, whose land the driveway runs over, decided she no longer liked him driving over her property. So, instead of forcing one owner to figure out a new way to enter and exit his property, the court will step in and create an implied easement.

The idea is that despite the fact that no express easement was ever created, the parties had always intended this easement to exist, and this intent of the parties was exhibited by their use of the implied easement area. Most often we see implied easements arise out of situations where a property owner divided her property into smaller pieces but failed to provide for express easements at the time the property was divided.

What must be shown to establish an implied easement?

A party seeking to establish the existence of an implied easement must show that:
1. there was unity of ownership of the dominant and servient estates and that the use was 
2. apparent, 
3. in existence at the time of the grant, 
4. permanent, 
5. continuous, and 
6. reasonably necessary to the enjoyment of the premises granted.