Implied easements

Question 1

Easements by operation of law

Answer 1

Implied easements are informal, arising out of the circumstances.

They are neither subject to the statute of frauds nor to recording acts—unless, in the case of the latter, the subsequent purchaser had notice of the easement.

Question 2

Easements by operation of law: scope

Answer 2

The scope of an implied easement is determined by the nature of the prior use or necessity.

Implied easements are transferrable.

Question 3

Implied easement by necessity

Answer 3

An implied easement of necessity is created only when the property is virtually useless otherwise—e.g., when the land is otherwise landlocked.

Such an implied easement requires:

(1) Common ownership—i.e., that the dominant and servient estates were once owned by the same person; and
(2) Necessity at severance—i.e., that severing the property rendered one property useless without an easement.

An implied easement by necessity ends when it is no longer necessary.

Question 4

Implied easement by implication

Answer 4

Creating by existing use on a property, consisting of the following requirements:

(1) Common ownership;
(2) Use by the common owner of a land as if there were an easement (“quasi-easement”);
(3) Continuous and apparent use at the time of severance; and
(4) Use must be reasonably necessary to the dominant estate’s use and enjoyment.

Question 5

Implied easement by prescription

Answer 5

An implied easement by prescription is analogous to acquiring an easement by adverse possession.

It requires use that is:

(1) Hostile;
(2) Open and notorious; and
(3) Continuous.

Unlike adverse possession, the possession need not be exclusive.

Question 6

Implied easement by estoppel

Answer 6

An implied easement by estoppel exists when:

(1) The claimant was granted permissive use, i.e., by license;
(2) She reasonably relied on the promise and did so in good faith;
(3) The owner withdrew permission; and
(4) The claimant had detrimentally relied on the owner’s promise.