Easements By Implication, Prescription, Necessity & Estoppel

Lesson Transcript
Instructor: Shawn Grimsley

Shawn has a masters of public administration, JD, and a BA in political science.

While easements are usually granted by way of a signed deed, some easements are created in other ways. In this lesson, you'll learn about easements by implication, prescription, necessity, and estoppel.

Creation of an Easement

You may recall that an easement is a non-possessory interest in real estate that permits its holder to make a specific use of the property owned by another. Most easements are created by an express easement. However, easements that can be created without a signed writing include easements by implication, easements by necessity, easement by prescription, and easement by estoppel.

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  • 0:05 Creation of an Easement
  • 0:27 Easement by Implication
  • 3:38 Easement by Necessity
  • 4:24 Easement by Prescription
  • 5:38 Easement by Estoppel
  • 6:30 Lesson Summary
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Easement by Implication

Sometimes the law will imply that an easement was created based on the surrounding circumstances. An easement by implication may be created when:

  1. A single parcel of land is divided into two or more parcels, with parcels going to different owners
  2. The use underlying the easement must have existed before the division of the property and that use have been both apparent and continuous before the division;,and
  3. The use must be reasonably necessary for the use and enjoyment of the parcel

Let's examine these elements in more detail:

First, a single parcel of land must be divided up, such as a farmer selling ten of his twenty acres to a real estate developer subdividing ten acres of land into 40 quarter-acre lots to be sold to 40 different persons. Since there must be servient estate (the property being burdened by the easement) and a dominant estate (the property benefiting from the easement), an easement in gross cannot be created by implication. This is because an easement in gross is a personal right rather than a right attached to a parcel of property.

Second, the specific use underlying the claimed easement must have existed prior the division of the single parcel into two or more separate parcels. Moreover, this prior use must have been both continuous and apparent prior to the division of the property. Let's say that a farmer subdivides his 50-acre farm and sells five acres as a hobby farm. The parcel sold includes a barn. In the past, the farmer accessed the barn by private road. The gravel road is actually on the land the farmer retained, but if all the other requirements are met, there is an implied easement in favor of the buyer's hobby farm to use the gravel road to access the barn because of the prior use. This is the case even though there may have been another way for the owner to access the barn. Note: some courts may not require a prior use before division of the property, so check your specific state law.

Third, most courts require that the easement must be reasonably necessary for the use and enjoyment of the property. Absolute necessity is not required if the easement benefits the grantee's (buyer's) property. In our example, the buyer of the hobby farm didn't absolutely need an easement to make use of the property and barn, but he can argue it's reasonably necessary. Some courts are harsher when an easement is reserved and require 'strict necessity.' A reservation occurs when you transfer property to another but retain an easement over it for yourself. If our farmer in the above example kept the property with the barn and sold the other property instead, he may have to prove that an easement to use the gravel road is an absolute (or 'strict') necessity for the use of his property.

Sometimes an implied easement may be based on a subdivision plat. A plat is a map of a subdivision that shows the lots, streets, and other spaces. If the streets in a subdivision are private, the mere fact that private streets are adjacent to the residential lot implies that each adjacent lot (or even all the lots in the subdivision) has an easement to use the street. The same may hold true for parks and playgrounds in the subdivision.

Easement by Necessity

An easement by necessity looks like an easement by implication with a couple of important distinctions. It involves two parcels of properties - one to be the dominant estate and one to be the servient estate. Unlike an easement by implication, an easement by necessity requires that the use be absolutely necessary for the use of the dominant estate.

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