What Are the Legal Aspects of Implied Easements and How Do They Differ from Express Easements?
If you regularly purchase or sell property, you may have come across implied, express, and prescriptive easements. Although these all have the same general outcome, there are significant differences that can impact your real estate transactions. Learn more about how implied and express easements are used and protected.
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What Are Implied Easements?
An easement is the right to use someone else’s property for a specific, limited purpose. For example, the gas company might have an easement that allows them to work on the lines that run under your home. If there’s a public pond surrounded by private homes, a road that runs through the yards may allow visitors to temporarily access others’ property to reach the pond.
It’s important to note that an implied easement requires people to access private property in a way that does not unfairly disrupt the property owners. In the example above, the path to the pond would be far from the homes and not give passersby a private view into their homes. It would not subject the homeowners to excess noise or foot traffic.
Establishing an Implied Easement
An implied easement is not explicitly included in real estate legal documents. However, it is no less legally binding. There are several requirements that must be met for an implied easement to exist.
First, the easement must be necessary for full use of the original property.
Second, the property must have been divided among new owners at one time.
Third, the intended use of the easement must have been present before the property division.
Consider, for example, a large plot of waterfront land. The land is divided up into parcels, with one parcel retaining full lakefront access and the other becoming landlocked. The owners agree to let the landlocked parcel’s owner access the lakefront parcel’s owner’s property to reach the lakefront. When one or both of those properties sell later on, the implied easement is already in place.
Differences Between Implied and Express Easements
An express easement is essentially the opposite of an implied easement. While an implied easement is not documented in writing, an express easement is included in the proper real estate legal documents. They are generally created by a will or deed and allow for the future use of the easement.
An easement may allow specific access to the land. However, there is also a negative easement. This type of easement clearly prohibits property from being used in certain ways. Consider, for example, a parcel divided into multiple pieces.
A negative easement may prevent one parcel owner from building too close to the property line. It may also prevent one property owner from adding to their home in a way that would block the other home from receiving sunlight.
What About Prescriptive Easements?
While implied and express easements are generally agreed upon by property owners—either past or present—prescriptive easements are a different brand entirely. A prescriptive easement does not occur with the permission of the property owner. It happens when another party continuously uses the property owner’s land in a way that ignores or violates their rights. If they do it for a long enough period of time, they actually gain the right to use the land.
This is why it’s so important for property owners to protect their land and avoid permitting others to encroach on it. It’s also another reason that land surveys are so important. Without a land survey, you may think that your property ends short of where your actual property line is. If your neighbor uses that part of your property for long enough, it might become theirs.
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If you are looking for assistance with a real estate transaction or a dispute has arisen over one of your properties, set up an appointment with our team now. We’re ready to review your documentation, give our professional advice, and help you decide how to move forward. Contact us online or call us at 410-626-6009 to schedule a meeting.