11 Jan 2023
31 Jan 2022
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.
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:
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.
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.
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.
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
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:
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.
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