Easements by Implication (Prior Use and Necessity)
Easements are a non-ownership right to use or enjoy someone else’s land. I recently discussed the two major types of easements, appurtenant easements and easements in gross, in a blog post here. Parties can create easements in a variety of ways. Most easements are created by express grant – essentially a written agreement between parties on the terms of an easement. My colleague, Andrew McKenzie, wrote a blog post here regarding interpretation of such easement agreements.
Sometimes, a party can acquire nonconsensual easements rights without an actual agreement with the burdened property owner. The most common type of nonconsensual easement is the prescriptive easement, which we have discussed in previous blog posts here and here. However, other forms of nonconsensual easements exist as well. The second most common category, after prescriptive easements, are easements by implication. A party may be able to establish an implied easement in circumstances where a written easement does not exist, and where the numerous elements of prescription cannot be met.
In an easement by implication, a court may find an implied easement based on the facts and circumstances surrounding the conveyance of property. Implied easements must arise from the prior common ownership of the properties at issue. In other words, if a claimant seeks an implied easement from another party, the two properties at issue (owned by these two parties) must have been previously owned, at some point, by a single common owner. There are two principal types of easements by implication: (1) prior use and (2) necessity. These two types of easements by implication share many characteristics.
A claimant can establish an easement by prior use by meeting the following five elements:
- The landowner must convey a part of the landowner’s land.
- The landowner must retain a portion of the land, typically an adjacent parcel.
- There was usage between the two parcels prior to the conveyance that would have required an easement had they been separate properties.
- The usage must be reasonably necessary to the property that would benefit from the easement right.
- The usage must be apparent.
With an easement by prior use, courts will sometimes say that a “quasi-easement” existed before the conveyance. They refer to this as a “quasi-easement” because an easement cannot exist between two properties owned by the same landowner. This would terminate the easement by “merger.” We have discussed termination of easements in a blog post here.
Most cases analyze the element of necessity and whether the use is apparent. “Reasonable” necessity is required. “Reasonable” necessity depends on whether the claimant can, at reasonable cost, create a substitute to the implied easement. Meanwhile, “apparent use” requires that the grantor and grantee contemplated an easement in some fashion. Typically, that involves obvious use (driveways, roadways), or otherwise, some provable communications regarding the easement. For less obvious usage, having certain visible sections might be enough, such as portions of an underground line.
On the other hand, a claimant can establish an easement by necessity by meeting the following three elements:
- The landowner must convey a part of the landowner’s land.
- The landowner must retain a portion of the land, typically an adjacent parcel.
- After the severance of the parcels, it is “necessary” to pass over one of them to reach a public street or road from the other.
Unlike an easement implied from prior use, an easement by necessity does not require pre-existing use. In other words, the property owner who previously owned both properties at issue did not have to use the easement area prior to conveyance. Instead, the easement by necessity arises when the two parcels are severed. The test of necessity is similar as with prior use: can the claimant, at a reasonable cost, find a substitute on the claimant’s own property that does not require trespassing over the neighbor’s property. Once again, this is not strict necessity, but rather, that other routes are substantially less convenient.
Whether or not a claimant can successfully establish an implied easement, whether by prior use or necessity, rests heavily on the facts and circumstances. Consulting with legal counsel can be critical to understanding your property rights in circumstances where you need access through another property, but do not have an express easement.
The attorneys at Beresford Booth have extensive experience with real property and easement issues. If you have any questions regarding easements that affect your rights, please do not hesitate to contact us at info@beresfordlaw.com or by phone at (425) 776-4100.