Implied easements
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Implied Easements. Basic Idea. Implied from circumstances ( not in the deed ) “ coulda woulda shoulda ”. Requirement. Severance of commonly-owned parcels required: Deed conveys some, but not all, of grantor’s land, or Deed conveys grantor’s land to different grantees.

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Presentation Transcript

Basic idea
Basic Idea

  • Implied from circumstances (not in the deed)

    • “couldawouldashoulda”


Requirement
Requirement

  • Severance of commonly-owned parcels required:

    • Deed conveys some, but not all, of grantor’s land, or

    • Deed conveys grantor’s land to different grantees.

      [Implied easements not allowed over stranger’s land.]


Types of implied easements
Types of Implied Easements

  • 1. By Necessity

  • 2. By Prior Use

    • [quasi-easement]


Implied by necessity
Implied by Necessity

Owner of Rectangle conveys Oval to Grantee



Implied by prior use quasi easement
Implied by Prior Use [quasi-easement]

  • Use must exist prior to the severance, and

  • Satisfy court that it is justified to impose the easement (parties merely “forgot” to place easement in deed).


Implied by prior use
Implied by Prior Use

Factors Courts Examine

  • 1. Prior use apparent or discoverable by reasonable inspection.


Implied by prior use1
Implied by Prior Use

Factors Courts Examine

  • 2. Permanent or Continuous


Implied by prior use2
Implied by Prior Use

Factors Courts Examine

  • 3. Necessary and Beneficial

    • Note potential difference between implied grant and implied reservation.


Implied by prior use3
Implied by Prior Use

Factors Courts Examine

  • 4. Other factors, e.g.,

    • Price paid

    • Existence of reciprocal benefits

    • Exact language of deed



Practical advice
Practical Advice

  • __________________________

  • __________________________


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