The law allows for one party to travel over someone else’s land. This is called an easement by implication of law.
For example, if the only way to get to a property is to access the use of someone else’s land, the law will allow for the land owner to use someone else’s land to access their own. The landowner does not need to explicitly allow the other homeowner to use their land. The law permits usage without the approval of the landowner whose property is being accessed.
Since buying his home, suppose one landowner has been using his neighbor’s east point entrance to enter his house. Using this entrance saves the landowner at least two minutes each trip. Both parties have never had a disagreement about the use of the land. The act of using the other landowner’s property has evidently been accepted over the course of the few years, and thereby it is implied that, by law, the landowner has the right to use his neighbor’s property in order to access his own.
An easement can be created even if it is not expressed. This is known as an easement by implication. This type of easement can be established if it the actions surrounding the situation imply the use of the easement such as the requirement to access one road to get to another property.
Easement by implication can occur in the following circumstances:
when prior use occurred
when it is deemed necessary
Prior Use
For prior use to be established, one of the property’s must have has an easement in the past thereby making it permissible for the easement to be established. To establish prior use, the easement must have been there in the past and have a reasonable reason to use the easement.
Requirement for Prior Use to be Established
Use has to be necessary to enjoy the property where the easement currently does not exist
Party trying to retain easement (future dominant tenement) has to be owned by the same party that owns the party where the easement is not available
Seller must have intended for easement to transfer and buyer must have reasonably expected it
Prior use must have been for a sustained period of time and not at undetermined periods of time
Existence of easement must have been obvious to an average bystander
Necessity
Easement by implication can occur if the use of the land is a necessity to access another’s land. The law does not punish party’s that have a reasonable right to use a portion of another’s property to make reasonable enjoyment of their own property. To combat this, necessity is one of the prerequisites to gain an easement by implication.
Easement by Implication and How It Relates to Easement by Necessity
The main reason for the existence of an easement by necessity is to allow landowner’s the reasonable right access his or her own property even if that means one landowner can use someone else’s land to access their own. For example, if someone can only access their property by using the other landowner’s land, he or she has the right to use a neighbor’s property through necessity. The easement by necessity is a carryon of the easement by implication of law. This is because acts that are necessary must be considered so under the implied rule of law. The law concludes that every parcel of land must be easily accessed, even if accessing the property requires the use of another party’s land. As you will see below, lot C must use lot A’s driveway.
