An easement is an agreement that gives a person the right to use or enter another person’s land property.
For example, you have the right to use the public park, but the only way to get there is through the private property of another party.
The easement gives you the legal authority to access or use the land in a manner that is non-disruptive to the property owner.
In this post, we’ll be discussing the big question that occurs in discussing easements: “Is it express or implied?”
Express easements are presented with a legally-binding document, while implied easements arise through given circumstances.
It’s important to distinguish what type of easement exists as each has a very different and specific purpose according to the law.
An express easement is written in a physical document, either in a deed or a will.
This is usually made when an owner transfers property rights to another person.
By law, it is necessary to have a written record stating that the previous owner can still access a piece of the land if they reserve an easement in it.
Depending on the nature of the agreement, the express easement can be affirmative or negative.
An affirmative easement gives the easement holder the right to use a specific portion of land property.
On the other hand, a negative easement prohibits individuals from doing anything to a property, such as building a fence or a structure that may block the view of the property owner.
An implied easement is an agreement arising due to certain situations or circumstances.
This easement is not written in a real estate document but is still legally binding. A way to declare the existence of an implied easement is that there must be a need for it to exist.
If a person decides to sell a parcel of land in split lots, an implied easement is needed in this situation. In this case, there are certain requirements for an implied easement to be considered by the law.
Requirements for an Implied Easement
These three requirements must be met for an implied easement to be established or to continue even when it’s passed onto new ownership through a real estate sale.
- The easement must be reasonably necessary to enjoy the original piece of property.
- The land or property must have been divided at some point and sold to new property owners.
- The need for an easement must have been existing prior to the land property being divided.
A related type of easement is the prescriptive easement.
This generally occurs due to a misunderstanding of property boundaries.
Similar to implied easements, prescriptive easements are not written or documented. But unlike implied easements, prescriptive easements are quite hostile in nature.
For example, a prescriptive easement happens when a neighbor puts up fences, gates, or other structures that may restrict access on the land property and was only found out by the landowner after several years or even decades.
Prescriptive easements result from frequent use of privately-owned property:
- Trespasser has access and can use another’s property openly and blatantly, without sneaking around.
- The trespasser uses the property as if they own the property.
- Trespasser having used the property continuously for years (statutory period).
- A prescriptive easement may be granted under the legal principle of adverse possession. In this situation, the ownership of the smaller piece of the property is transferred from the landowner to the other entity based on the state’s adverse possession rules.
Easements are necessary for many real property situations to allow property owners to use and enjoy their land.
Determining whether an easement is express or implied is important as it can have some bearing on its transferability and the scope of its use.
Easements can be complicated, and it might cost a lot to end or adjust them.
It’s important to contact a lawyer who can explain how a particular easement was formed. They can also advise you on what to do about it if there are limitations affecting the land you’re residing on or planning on purchasing.
We hope we were able to enlighten you with everything you need to know about legal easements. For more real estate exam prep, click here.