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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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