Understanding Shared Land Rights Easements and Licenses Part Two
By Roberto M. Hernandez and Skyler E. Gray
October 3, 2023
In part one of this series, we reviewed the concept of shared land rights and why this information is very important for all real estate owners, no matter how experienced they may be. We also provided some introductory information on easements and some common terminology to be aware of. Be sure to revisit part one if you need a quick refresher on this terminology. Because of how common shared land rights are, this series is intended to help you identify shared land rights and to protect or defeat these rights, depending on whether you are the owner of the dominant or servient tenement.
With that in mind, we are now prepared to quickly dive into the first two of the most common easements found today: (i) express easements and (ii) implied easements – by necessity and (iii) implied easements – by prior existing use.
Express Easements
An express easement is a written grant of a limited property right from the owner of the servient tenement to another individual or entity. The appeal of an express easement lies in its clarity and simplicity. An express easement explicitly outlines the easement description in a legal document and ensures that all parties involved know their rights and responsibilities.
For example, John owns a parcel called Greenacre. Jane owns a neighboring parcel to the east named Blackacre. One day, John drafts and signs a document that states: “The owner of Blackacre may cross Greenacre to reach West Road (a street located on the west of Greenacre).” Jane and any subsequent owner of Blackacre now have an express easement to cross Greenacre to reach the western road. Greenacre is a servient tenement as long as the express easement exists.
But how does Jane ensure that future owners of Greenacre are bound to the express easement? Jane’s best course of action is to ensure that any potential prospective purchasers of Greenacre have notice of the express easement. The easiest way to let future owners of Greenacre know is by getting the written document describing the easement officially recorded at the county recorder’s office. If correctly recorded, an easement can exist in perpetuity.
What about the future owners of Greenacre? Is there anything they can do to end the easement holder’s rights? Assuming that the document is recorded correctly, the best course of action for Greenacre’s owner is to approach Blackacre’s owner and discuss voluntarily modifying or terminating the access easement. Anything beyond that, we recommend talking to a legal professional as the simplistic nature of express easements makes it very easy for the servient or dominant tenement owner to open themselves up to legal liability needlessly.
With our quick dive into express easements complete, we now look at the first of the two common implied easements.
A Brief Overview of Implied Easements
Unlike the simplistic nature of an express easement, where an easement is explicitly granted, implied easements are inferred and formed in specific and limited situations. Implied easements are rooted in the particular circumstances of each property, the historical use of each property, and the intent of the original property owners. Often these easements arise when a large parcel was split into smaller properties. Implied easements show how the law can be applied in real-life situations without being limited to written documents. This demonstrates the flexibility of easement law.
Implied Easements – Easement by Necessity
The first implied easement we will explore is the easement by necessity. An easement by necessity most commonly arises when a parcel is left landlocked by the split of a large parcel, leaving one owner with no legal access to a public road or path. Said differently, most easements by necessity need (i) two parcels that were once under common ownership, (ii) the common ownership is severed, and (iii) the easement is strictly necessary for the dominant tenement because it’s landlocked.
To return to our example of John and Jane, let’s say that Greenacre and Blackacre were previously owned by Paul, who split and sold each parcel to John and Jane. John now owns Greenacre and Jane owns Blackacre. In this instance, the parcels were once under common ownership, establishing elements one and two of an easement by necessity. The only nearby public road for Blackacre is West Road, which Jane cannot access without driving through Greenacre. An easement is strictly necessary for Blackacre to access the public road, establishing element 3. Based on this scenario, Jane, the owner of Blackacre, has an easement by necessity through Greenacre to access West Road.
When challenging or enforcing an easement by necessity, the dispute often centers around whether there is a “strict necessity” for the easement. This type of easement only survives for the duration of the need. If other access to the property is available, even if such access is inconvenient, difficult, or costly, there is no “strict necessity.”
Implied Easements – Prior Existing Use
An implied easement by prior existing use focuses on the historic use of the neighboring properties. This type of easement arises when (i) two parcels that were once under common ownership; (ii) the property is split and sold; (iii) the new owner knew of the existing use of the property, or, because it was so evident and permanent, should have known of its existing use for a specific purpose; and (iv) the easement is reasonably necessary to the use and benefit of the easement holder.
Returning to John and Jane, Suppose Jane owned Blackacre, a large parcel of land. Jane always used a small strip of land to travel between Blackacre and her farm. She would occasionally park her tractor on the strip of land. Jane decides to split and sells part of the Blackacre and, in doing so, create Greenacre. Greenacre now contains the strip of land that Jane uses to park her tractor occasionally and travel to her farm. John purchases Greenacre, knowing that Jane parks her tractor in Greenacre and travels through the property to get to the farm. Although there is no written agreement that Jane can use the road to park and traverse, she may have an implied easement by prior existing use. John’s best offense here would have been to become fully informed about the properties before purchasing Greenacre.
Conclusion
Property owners should be aware of the possibility of acquiring or losing easements rights through the legal principle of easement. If you’re dealing with a situation involving potential easements, it’s essential to consult with a qualified legal professional who can provide guidance based on your circumstances.
The final article in this series will explore the other common easement types, including easement by prescription and equitable easements. We will also touch on licenses which are not easements but remain similar in many ways.
The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your state immediately to determine your best options.
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By Roberto M. Hernandez and Skyler E. Gray
October 3, 2023
In part one of this series, we reviewed the concept of shared land rights and why this information is very important for all real estate owners, no matter how experienced they may be. We also provided some introductory information on easements and some common terminology to be aware of. Be sure to revisit part one if you need a quick refresher on this terminology. Because of how common shared land rights are, this series is intended to help you identify shared land rights and to protect or defeat these rights, depending on whether you are the owner of the dominant or servient tenement.
With that in mind, we are now prepared to quickly dive into the first two of the most common easements found today: (i) express easements and (ii) implied easements – by necessity and (iii) implied easements – by prior existing use.
Express Easements
An express easement is a written grant of a limited property right from the owner of the servient tenement to another individual or entity. The appeal of an express easement lies in its clarity and simplicity. An express easement explicitly outlines the easement description in a legal document and ensures that all parties involved know their rights and responsibilities.
For example, John owns a parcel called Greenacre. Jane owns a neighboring parcel to the east named Blackacre. One day, John drafts and signs a document that states: “The owner of Blackacre may cross Greenacre to reach West Road (a street located on the west of Greenacre).” Jane and any subsequent owner of Blackacre now have an express easement to cross Greenacre to reach the western road. Greenacre is a servient tenement as long as the express easement exists.
But how does Jane ensure that future owners of Greenacre are bound to the express easement? Jane’s best course of action is to ensure that any potential prospective purchasers of Greenacre have notice of the express easement. The easiest way to let future owners of Greenacre know is by getting the written document describing the easement officially recorded at the county recorder’s office. If correctly recorded, an easement can exist in perpetuity.
What about the future owners of Greenacre? Is there anything they can do to end the easement holder’s rights? Assuming that the document is recorded correctly, the best course of action for Greenacre’s owner is to approach Blackacre’s owner and discuss voluntarily modifying or terminating the access easement. Anything beyond that, we recommend talking to a legal professional as the simplistic nature of express easements makes it very easy for the servient or dominant tenement owner to open themselves up to legal liability needlessly.
With our quick dive into express easements complete, we now look at the first of the two common implied easements.
A Brief Overview of Implied Easements
Unlike the simplistic nature of an express easement, where an easement is explicitly granted, implied easements are inferred and formed in specific and limited situations. Implied easements are rooted in the particular circumstances of each property, the historical use of each property, and the intent of the original property owners. Often these easements arise when a large parcel was split into smaller properties. Implied easements show how the law can be applied in real-life situations without being limited to written documents. This demonstrates the flexibility of easement law.
Implied Easements – Easement by Necessity
The first implied easement we will explore is the easement by necessity. An easement by necessity most commonly arises when a parcel is left landlocked by the split of a large parcel, leaving one owner with no legal access to a public road or path. Said differently, most easements by necessity need (i) two parcels that were once under common ownership, (ii) the common ownership is severed, and (iii) the easement is strictly necessary for the dominant tenement because it’s landlocked.
To return to our example of John and Jane, let’s say that Greenacre and Blackacre were previously owned by Paul, who split and sold each parcel to John and Jane. John now owns Greenacre and Jane owns Blackacre. In this instance, the parcels were once under common ownership, establishing elements one and two of an easement by necessity. The only nearby public road for Blackacre is West Road, which Jane cannot access without driving through Greenacre. An easement is strictly necessary for Blackacre to access the public road, establishing element 3. Based on this scenario, Jane, the owner of Blackacre, has an easement by necessity through Greenacre to access West Road.
When challenging or enforcing an easement by necessity, the dispute often centers around whether there is a “strict necessity” for the easement. This type of easement only survives for the duration of the need. If other access to the property is available, even if such access is inconvenient, difficult, or costly, there is no “strict necessity.”
Implied Easements – Prior Existing Use
An implied easement by prior existing use focuses on the historic use of the neighboring properties. This type of easement arises when (i) two parcels that were once under common ownership; (ii) the property is split and sold; (iii) the new owner knew of the existing use of the property, or, because it was so evident and permanent, should have known of its existing use for a specific purpose; and (iv) the easement is reasonably necessary to the use and benefit of the easement holder.
Returning to John and Jane, Suppose Jane owned Blackacre, a large parcel of land. Jane always used a small strip of land to travel between Blackacre and her farm. She would occasionally park her tractor on the strip of land. Jane decides to split and sells part of the Blackacre and, in doing so, create Greenacre. Greenacre now contains the strip of land that Jane uses to park her tractor occasionally and travel to her farm. John purchases Greenacre, knowing that Jane parks her tractor in Greenacre and travels through the property to get to the farm. Although there is no written agreement that Jane can use the road to park and traverse, she may have an implied easement by prior existing use. John’s best offense here would have been to become fully informed about the properties before purchasing Greenacre.
Conclusion
Property owners should be aware of the possibility of acquiring or losing easements rights through the legal principle of easement. If you’re dealing with a situation involving potential easements, it’s essential to consult with a qualified legal professional who can provide guidance based on your circumstances.
The final article in this series will explore the other common easement types, including easement by prescription and equitable easements. We will also touch on licenses which are not easements but remain similar in many ways.
The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your state immediately to determine your best options.
Recent and Popular Articles From Our Blog:
• May 10, 2022 – Using the 1031 to Reinvest
• August 23, 2022 – Understanding Private Road Maintenance
• January 10, 2023 – Website Accessibility Requirements
• February 14, 2023 – Understanding Mediation and Arbitration in RPA
• April 4, 2023 – Understanding Liquidated Damages in a Home Purchase Contract
• June 20, 2023 – Understanding the Lis Pendens
• June 27, 2023 – Do’s and Don’ts Guidelines to a Dental Practice Transition