What is an implied easement?

| Mar 6, 2019 | land use & zoning

Not long ago this blog discussed the topic of express easements. Express easements are just one type of easement that property owners may have to recognize on their land and this post will address how implied easements may be formed and recognized under the law. While this post does provide information to its readers, it should not be read as legal advice or counsel.

An express easement is created by title or deed in an official capacity, while an implied easement may be created by necessity or use. Implied easements often come into being when large tracts of land are divided up into smaller parcels for sale or separate use. For example, a large piece of land on a lake may be divided into two lots with only one having access to the water; an implied easement may exist to allow the owners of the inner lot to get to the lake.

An implied easement must exist prior to the division of the property into separate tracts. In the above example, it would be necessary for individuals on the inner portion of the large tract to go through the portion with lake frontage to access the water. Additionally, an implied easement must be necessary for the owners of a parcel to enjoy the full use of their property.

Implied easements may be hard to recognize because they can lack the formality of express easements. In order to protect their property interests, individuals who have questions about implied easements and other land use topics should discuss their concerns with their real estate attorneys.