5 Advantages of setting out Implied Easement through Deed of Easement

An easement is a non-possessory right to use real property owned by another. The most common is the right of way. Other rights include the use of power cables, telecommunications lines, supply pipes, drains, and other common supports and amenities that run through other people’s property.

There are various ways for an easement to be created, including (i) easement out of necessity by court order, (ii) easement by implication through long-term use without objection from the property owner; and (iii) express easement set out under a deed of easement between the servient tenement and the dominant tenement (for definitions see below).

One common question that gets asked in situations where there is an implied easement between the neighbours - should we turn the implied easement into an express easement through a deed of an easement? There are advantages and disadvantages to this approach depending on whether you are the dominant tenement or the servient tenement. In general, the advantages of setting out all your rights and obligations under a deed of easement outweigh that of having them unwritten.

This article will explain the advantages of expressing an easement by implication under a deed of easement, and why there may still be some reservations for the owner of a servient tenement to have the implied easement set out in writing. Read on to find out more.

What is an Implied Easement/Easement by Implication?

An easement by implication, or implied easement, is a legally binding non-possessory right over another person’s property that is not written down. This unwritten rule, however, can be enforced through court action.

An implied easement can be created due to the history or circumstances of specific property, where there is an understanding that one can use/pass through another’s property. Generally, there is pre-existing use without objection from the property owner. One common scenario is for a landlocked property owner to have a right of way over another owner’s property.

Another common way for an implied easement to be created is where a property has been owned by one entity (unity of ownership), and then the property is split into smaller parcels with different owners. The road, cables, support, utilities etc. that passed through one parcel may be used by the owners of the other parcels.

According to Lyle Solomon of Oak View Law Group, the following are the key elements for there to be an implied easement under the above scenario:

• The easement has to be out of reasonable necessity for the enjoyment of the property.
• The land needs to be divided so that the owner of the parcel of the land is selling a part of the land and subdividing the other parts to other owners.
• The intended use of the easement should have existed prior to the current sale of the property.

Easement Appurtenant vs. Easement in Gross

Easements can be “appurtenant” or “in gross”. Appurtenant easement means that the easement “runs with the property”. This means that this is a property right that transfers with the land. The easement is passed on to the new owner of the property when the property is transferred. A title search would be able to find the easement if it is expressed. However, an implied easement may not be discoverable in a title search if it is not properly documented.

An easement in gross does not transfer with the property. It is a personal right to use the property that benefits an individual, a household or an entity. Such easement would not be registered in the land registry and would not be uncovered by a title search.

Most implied easements are attached to the properties. They “run with the property” and are generally regarded as easement appurtenant. If you own land that has an implied easement over another property, then when you sell the land, the easement stays with the land, and the next owner will benefit from it just as you did.

However, if the easement is not properly documented, there may well be an argument in future when the property is transferred that such easement is only an easement in gross and does not pass with the land.

Dominant Tenement vs. Servient Tenement

In relation to an appurtenant easement, a dominant tenement (or a dominant land) is the property that enjoys the benefits of the easement over another property.

On the contrary, a servient tenement (or a servient land) is the property that is burdened by the appurtenant easement of another property.

What is a Deed of Easement?

If an easement has not been recorded, it may be lost through the years. A deed of easement is a signed legal document that gives the current owner and all future owners of the dominant tenement the right to use the easement over the servient tenement for a stated purpose.

The document is signed as a deed between the owners of the dominant tenement and the servient tenement to bind the current owner and all future owners to the use of the easement in perpetuity (or for the specified period of time in the easement). Another reason is that whether the consideration is a non-de minimis amount of money or whatever is negotiated, there will not be the issue of the lack of sufficiency of consideration by virtue of putting the easement in the form of a deed.

For a standard version of the deed of easement, please click here.

For a cost-sharing version of the deed of easement, please click here.

5 Advantages of Setting Out an Implied Easement through a Deed of Easement

Because an implied easement is undocumented, it is a common issue in neighbourhood disputes and often requires the court to enforce it. Having the easement in writing would avoid future disputes, especially when the property is passed down between different owners and across generations.

Below are 5 advantages of setting out an implied easement through a deed of easement

1. Clarity – An express grant of an easement in deed avoids ambiguity and subsequent confusion between the parties, states David Reischer, Esq. Real Estate Attorney and CEO of legaladvise.com. It is certainly less contentious than an implied easement. Issues can arise when a property has been sold to another party without defining the easement clearly. This applies to both dominant and servient tenements.
   
   
2. Avoid Dispute - Agreeing with your neighbour(s) upfront on the rights under the easement will avoid a lot of disputes in the future. Any neighbour disagreements can be ended with a quick review of the deed of easement. There is no need for the dominant tenement to prove pre-existing use, unity of ownership or necessity. One can save time and money by enforcing the easement in court.
   
   
3. More Control - Writing it down gives you as a property owner more control over the easement rather than leaving it to a judge in court. It gives both the owners of the dominant tenement and the servient tenement peace of mind. A deed of easement is certainly a stronger right than an easement by implication. On the other hand, the servient tenement can also place restrictions on the use of the easement by the dominant tenement through a deed of easement. If you allow the dominant tenement to pass through your garden without restriction, then you may encounter a problem if you try and build a swimming pool later.
   
   
4. Registration – A deed of easement, unlike an implied easement, can be registered with the Land Registry. This means that it will appear in the title search, and future owners will have a clear picture of what the easement is about. Additional legal costs and time will be incurred to transfer property under an implied easement. Not all easements have been registered. If you discover unrecorded easements when you are trying to redevelop your property, then you may encounter issues. 
   
   
5. Perpetual - When an implied easement is placed within a deed of easement, it gives the current owner and all future owners the use of the easement in perpetuity, so long as there is no merger of the properties, says Brad Biren, an attorney with iqmop.com. A merger extinguishes easements. Of course, the easement can also be restricted to a certain number of years instead of perpetual by making it clear in the deed of easement.

5 Disadvantages of having a Deed of Easement for a Servient Tenement

From the perspective of the owner of a servient tenement, whether to set out an implied easement under a deed of an easement may not be as clear-cut. The above advantages are applicable to both the dominant tenement and the servient tenement. However, there are also certain disadvantages of doing so, primarily in relation to the servient tenement:

1. Cancellation – In most jurisdictions, the sale, gift, or financing of real property must be in a writing. On the other hand, most implied easements are created from pre-existing use out of necessity. If there is no more need for the easement, the owner of the servient tenement can cancel the easement of the dominant tenement. If the easement is not recorded, it may be lost after the years through transfers of ownership. Once the easement is memorialised under a deed, it would be difficult to cancel it.
   
   
2. Restrictions – Instead of making it too easy for the dominant tenement to access, the owner of the servient tenement may want to place some restrictions on the use of the property. It would then be up to the dominant tenement to contact a lawyer to challenge such restrictions of the implied easement in court. This may be harsh, but it is a way for the servient tenement to limit the scope of the implied easement. As discussed earlier, this cuts both ways. If the court ultimately holds that the dominant tenement is allowed to pass through without restrictions, then you may encounter issues when you want to redevelop your property later.
   
   
3. Locked in – The servient tenement will be locked into the easement perpetually. This may be dangerous in the sense that if you make a mistake and make it too broad, you have to correct it either with a reasonable neighbour or through court. An implied easement means that it can be contested on its scope or even if it is legally binding in the first place.
   
   
4. Flexibility – The deed of an easement may not be sufficient to cover all potential scenarios. As Andrew Rozo, a New York attorney, has pointed out - sometimes it is better to have things be unofficial and thus flexible.
   
   
5. Property Value – Having an easement registered on record may affect the value of the servient property. In any case, the owner of the servient tenement should consult a lawyer when selling a property with an implied easement.

Please note that this is a general summary of the position under common law and does not constitute legal advice. As the laws of each jurisdiction may be different, you may wish to consult your lawyer.