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Real Property • Easements
PROP#106
Legal Definition
An easement may be implied if: (1) prior to the division of a single tract, (2) an apparent and continuous use exists on the servient estate, (3) that is reasonably necessary for the enjoyment of the dominant estate, and (4) the court determines the parties intended the use to continue after division.
Plain English Explanation
Implied easements usually happen when someone takes a large parcel and divides it into smaller parcels without properly thinking through how the division may impact use of the land. In other words, they are easements that likely would have been expressly reserved had the parties realized the need, but since they didn't, the court will allow the easement anyway as it was arguably implied by the existing use of the land.
Hypothetical
Hypo 1: Amy owns a large parcel of land called Whiteacre. On it, there is a single water well. Amy relies on the water well as her only source of water. One day, Amy decides that Whiteacre is bigger than she needs it to be, so she divides the parcel in half creating two separate pieces of land. One parcel of land has her house on it (Old-Whiteacre), the new parcel of land has the well (New-Whiteacre). When Amy sells New-Whiteacre to Bob, Bob decides to build a fence between the two properties, cutting off Amy's access to the well. Result: Here, a court would likely find that Amy has an implied easement to access the well due to Amy continually using the well prior to the division and the fact that it is reasonably necessary for her to have access to the well in order to enjoy her land.
Visual Aids
Related Concepts
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If the holder of an easement misuses it, does the easement terminate?
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In assessing a property law issue, what is a license?
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