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Implied Easement


Easement right granted to a landowner with the purpose of allowing the landowner to use the property for the original intent of the property such as entering or leaving the property. For example, if a landowner cannot enter or vacate their property without using another landowner’s property, an implied easement may exist.


An implied easement – also known as an easement by implication – occurs when an easement right is understood (or “implied”) to exist.

Unlike an express easement, an implied easement is not created through a formal written agreement. Rather, it occurs based on whether the situation falls under the standard operation of law.

There are two main requirements for an implied easement to occur:

Prior Use:An easement holder must have had access to a property prior to the circumstances calling for an easement.

Necessity: The use of the property must be reasonable and necessary.

When Implied Easement is Used

The need for an implied easement typically arises when there is a division of land among property owners that subsequently prevents one owner from making full use of his or her land. If the prior use and necessity requirements are fulfilled, a court will grant an implied easement.

For example, if a division of land cuts off a property owner’s previous access to his property because his driveway is now on his neighbor’s land, there is both prior use and necessity. Therefore, an implied easement would be granted.

Implied Easement Types

An appurtenant easement is a common implied easement. It refers to an easement right that transfers with a property. Put simply, the right to use the land “goes with the land”.

A property owner may indicate his or her desire for no future implied easements to occur. A written agreement by both parties would void the right of an easement holder to claim an implied easement.

An easement by prescription – also known as a prescriptive easement – is an implied easement whereby a prospective easement holder uses a neighbor’s property without permission for a number of years.

Similar to adverse possession, an easement by prescription affords rights to a prospective easement holder for using a property without permission. Easements by prescription are against the law until they become legally binding.

Requirements for Easement by Prescription

The following must take place for an easement by prescription to occur:

Open and Notorious Use: The owner is aware of prospective easement holder’s action.

Continuous Use: The prospective easement holder uses the property more than 50% of the time.

Adverse Use: The actions of the prospective easement holder are illegal and go against the rights of the property owner.

Should the property owner not prevent the prospective easement holder’s use of the property, the prospective easement holder will likely gain an easement by prescription.

The minimum period of time to win an easement by prescription is five years. However, unlike with adverse possession, it does not have to be the same party using the property in order to obtain an easement by prescription.

A property owner can prevent an easement by prescription by posting signs around the property that indicate the property’s true ownership. For example: “Right to pass by permission only, and subject to control of owner”.

Case Law Regarding Implied Easement

Case Review: Masin v. LaMarche (1982)

The case, Masin v. LaMarche (1982) 136 Cal.3d 687., involved a dispute over an easement by prescription.

A dominant tenement owner (Masin) had a road on his property. Masin’s neighbor (LaMarche) built a storage area on a portion of the road in order to store material and equipment. He also put up physical barriers to entry, denying Masin’s access to the area. Masin did not use that portion of that road – or stop LaMarche from using it – for seven years. At this point, he sued LaMarche to regain control of the road.

The Superior Court ruled that the portion of the road had not been used by Masin for a continuous period of seven years. Therefore, the road had been forfeited to LaMarche through easement by prescription.

Case Review: Dieterich International Truck Sales v. J.S. & J Services, Inc. (1992)

The case, Dieterich International Truck Sales v. J.S. & J Services, Inc. (1992), 3 Cal.4th 1601., involved a company which tried to claim an easement by prescription.

A truck and repair business (Dieterich International Truck Sales) shared a property border with another business (J.J. & J Services). For the past 22 years, Dieterich International had used a strip of J.S. & J Services’ land as the primary access point to its property for customers and deliveries to enter and park in Dieterich’s service bays. Dieterich International did so without disturbance from J.J. & J Services. Dieterich International filed a lawsuit to claim a prescriptive easement.

The Superior Court ruled that Dieterich International had the right to the easement.

Case Review: Otay Water District v. Beckwith (1991)

The case, Otay Water District v. Beckwith (1991) 1 Cal.4th 1041., involved a dispute regarding an easement by prescription.

A water district brings suit against an adjacent property owner, Beckwith, seeking to quiet title to a prescriptive easement. The defendant responds with a separate suit for inverse condemnation, ejectment, and fraud.

In 1962, a water district (Otay Water District) purchased land and constructed a reservoir. After the reservoir was built, Otay Water District discovered that it was partially built on an adjacent property owner’s undeveloped land. Years later, the adjacent land was purchased by a new owner (Beckwith). Beckwith was unaware that the reservoir was partially built on his land, and only discovered this fact when Otay Water District served him with the quiet title claim. Beckwith sued.

The Superior Court ruled in favor of Otay Water District on the grounds that an easement by prescription had been secured. The court stated that there was “open, notorious, continuous, uninterrupted, hostile, and exclusive use for twenty years or so”, thereby justifying the easement by prescription. Beckwith appealed the decision. The Court of Appeals upheld the lower court’s ruling.

Case Review: Dubin v. Robert Newhall Chesebrough Trust (2001)

The case, Dubin v. Robert Newhall Chesebrough Trust (2001) 96 Cal.4th 465., involved a dispute between a landlord and a tenant over an implied easement.

A tenant (Dubin) leased a property for his auto repair shop business. The original owners allowed him to use a 25 feet wide x 300 foot long access road as a driveway for customers. When the property’s owner died, the property was transferred to a management company (Robert Newhall Chesebrough Trust). The company asked Dubin to stop using the access road. Dubin refused, arguing that he had an implied easement to the road. In response, Robert Newhall Chesebrough Trust installed crash posts that blocked larger vehicles from accessing Dubin’s shop. Dubin sued for wrongful interference with an easement.

Dubin alleged that prior to the original owner’s death, he was allowed to utilize the access road freely and without obstruction. Dubin argued that many customers could not enter his location without the easement, which would severely damage his business. For this reason, the easement was needed. Conversely, Robert Newhall Chesebrough Trust argued that Dubin had no claim to the easement because the lease makes no mention of it. They also contended that Dubin had access to his actual property, so he couldn’t claim the easement was necessary.

The Superior Court ruled in favor of Robert Newhall Chesebrough Trust. Dubin appealed. The Court of Appeals overturned the lower court’s ruling. It argued that Dubin had sufficient proof of the access road’s necessity. As Dubin had also used the access road for more than five years before the original owner’s death, there was also prior use.