The easement is a fundamental concept of real estate, but not all easements are the same.
There are several types of easements that are not written down or registered. An implied easement or an implied easement by necessity is not written down. Another type of easement could also be a prescriptive easement. All these easements are not necessarily written down; all are not registered with any legal authority, but they are valid easements.
Table of Contents
- The Unregistered Implied Easement Explained
- An Implied Easement By Necessity
- Prescriptive Easement Clarified
- Frequently Asked Questions
- Related Questions
The Unregistered Implied Easement Explained
An Implied Easement is an easement that is not written down or registered. It is created by the circumstances of a particular land configuration.
For an implied easement to exist, there must be a need for it; if there is no need, the property owner does not need to grant easement rights to the land.
Essential Points About Implied Easements
An ”implied” easement is, as the name says, an easement that is implied but not necessarily registered or written down.
Here are a few things about implied easements:
- Parcel Of Land – The implied easement often concerns parcels of land that were once part of a larger parcel. An example would be a three-acre lot split into six separate parcels.
- To have an implied easement, there must be three requirements as follows:
- The easement must be reasonably necessary for the owner to enjoy the original property.
- The land must have been divided or severed so that the parcel owner is either selling part or retaining part or subdividing the property and selling the lots to different owners.
- The use of the implied easement would have had to exist before the land was severed or sold.
- The easement must be reasonably necessary for the owner to enjoy the original property.
An Implied Easement By Necessity
Another type of easement that could arise is an implied easement by necessity. An easement and implied easement by necessity is an easement that occurs when a landowner has a landlocked parcel of land to another individual or landowner.
Common law presumes that the other owner has the right to pass over the property if necessary to reach their landlocked property.
An easement by necessity could be an easement that is dormant, meaning that nobody does anything about it and nobody talks about it. They can pass over through several property transfers; each property transfer will pass on the easement.
Essential Parts of Easement of Necessity
Here are some elements that an Implied Easement of Necessity must have:
- Land Once Had A Single Owner – Land once had a single owner and then was divided.
- An Easement Is Necessary – The owner of the landmark property must show that the easement is necessary. Without an easement, there would be no way for them to access their landmark property.
The owner of the landlocked property must be able to prove that the severance or the division of the property cost their property to become landlocked, meaning that landowners now surround the property and that the owner does not have any other legal way of reaching their land except through an existing easement or license.
Implied easements are necessary, and any implied easement can become very messy. One reason is that they are not recorded. Property purchasers may not be aware that an easement burdens the land they purchase.
This can also be a problem for a seller who may not realize that a landlocked piece of land will require them to pass through another person’s piece of land as the easement is not recorded. This makes it problematic for both the buyer and the seller.
Prescriptive Easement Clarified
Another kind of easement is a prescriptive easement. This easement is not the same as the Implied easement and does not have the same conditions.
An example of prescriptive easement is if you have a neighbor and the neighbor has a fence that has been on your land for the last 20 years, but you never tell your neighbor that the fence is on your land; the neighbor may be allowed to keep the fence on your land.
Different states will have different years as to what would be considered required for a prescriptive easement to occur. But the main point is that you did not ask your neighbor to take the fence down, so there is a perception here because it has been there for all these years that you have allowed it.
Essential Points About Prescriptive Easements
The main points of a prescriptive easement include:
- Not Written Down Or Registered – A prescriptive easement is not written down or registered, but it is an easement because of the open and notorious use of an owner’s land, which is adverse to the owner’s rights.
- Continuous Use Of Land – Prescriptive easement is an easement that has had ongoing and uninterrupted use for years.
- Years Differ By States – State law defines the years required for such an easement.
If someone is unlawfully using your land and you have decided not to take action, you may one day find that you have a prescriptive easement on your land that you do not want.
That is why if you have land and somebody is using it, You must tell them to get off it and stop using it. You can also put up other things, such as no trespassing signs.
Easements are incredibly complicated in both real estate and real estate property law. That is why if you buy a property that you think may be landlocked, you need to check all these aspects to ensure that you have a legal way to get in and out of the property.
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Frequently Asked Questions
What is an unregistered easement?
An unregistered easement is a legal right to use another person’s land for a specific purpose which has not been officially recorded or registered with the appropriate authorities.
What is an easement?
An easement is a legal right that allows someone who doesn’t own a property to use or access it for a specific purpose. It grants certain rights to the easement holder over the land owned by someone else.
What are some common examples of easements?
Common examples of easements include rights of way, where one person has the right to cross over another person’s land, or utility easements, which allow utility companies to install and maintain infrastructure on private property.
What is an unregistered easement called?
An unregistered easement is commonly referred to as an “equitable easement” or an “easement by implication.”
How does an unregistered easement come into existence?
An unregistered easement can arise through various means, such as continuous use, necessity, or implication. It may be established by the actions and behavior of the parties involved rather than through a formal legal agreement.
Can an unregistered easement be enforceable?
An unregistered easement can be enforceable even though it has not been officially recorded. The legal enforceability of an unregistered easement depends on the specific circumstances and the applicable laws in the jurisdiction.
Can an unregistered easement be sold or transferred to another party?
Generally, an unregistered easement can be sold or transferred to another party, similar to a registered easement. However, the transfer may be subject to specific legal requirements and restrictions.
How can an unregistered easement be identified?
Identifying an unregistered easement can be challenging since it is not recorded or publicly documented. It often requires a thorough title search, examination of historical documents, and consultation with legal professionals to determine its existence.
Related Questions
What Happens If You Build On An Easement?
Usually, you can build on an easement if it does not interfere with its purpose. You should seek permission from the person with the easement to ensure there is no issue with the easement and what the easement is intended for. If unsure, you can also seek legal or other professional advice.
By clicking here, you can read more about What Happens If You Build On An Easement?
What Can I Do With A Utility Easement On My Property?
A utility easement gives the utility company full access to your property for the “good of the community.” The Utility company does not need to get permission to enter your property or work on your property. In fact, due to the utility easement, they could cut down trees, dig holes in your garden, or even not allow you to build an underground swimming pool or plant a tree.
By clicking here, you can read more about What Can I Do With A Utility Easement On My Property?
