Easements by Implication

An easement is a non-owner's right to use a piece of property. An appurtenant easement benefits another parcel of land and runs with the land. Easements in gross benefit individuals or legal entities and do not run with the land. The property that has the benefit of the easement is the "dominant estate," and the property through which an easement runs is the "servient estate." Usually easements are created by an express grant in a deed of land. Sometimes another type of legal document, such as a will, is used to create an express easement. Other types of easements that may affect property are easements by implication or prescriptive easements. The knowledgeable real estate attorneys at Pulgini & Norton can help people in the Boston area understand how easements may affect their rights and obligations.

Many easements are recorded in the registry of deeds. However, one issue that buyers should look out for is easements by implication. This type of easement is not recorded in the registry of deeds, but it may have arisen by necessity or by implication. Certain easements can affect whether the property is expanded and how it is used. An experienced real estate attorney can help investigate whether there are any easements by implication that are not recorded in the registry and that may affect a property you are purchasing.

Easements by implication exist when there is not a recorded easement, but the circumstances show an easement was intended. They commonly arise when someone divides a parcel of property and conveys part of the parcel to somebody else. If there is an apparent and obvious use of one part of the parcel for the benefit of the other parcel, and this prior use is part of an established pattern, the continuation of which is implied, an easement by implication arises.

Similarly, if the same person or people once owned both the dominant and servient estates, and the servient estate was severed from the dominant estate because it was conveyed to another owner, but the dominant parcel needs to use the servient estate for reasonable enjoyment of the property, an easement by necessity may be created.

For example, if the dominant parcel is landlocked and the owner cannot access the main road without driving through an access road that runs through the servient estate, an easement by implication may be created. Similarly, if one person owns a parcel and then severs the parcel and conveys both parts to other people, but some portion of a shed belonging to one parcel crosses the boundary onto the other parcel, there may be an easement by implication.

Sometimes an easement by implication is established in part by reference to a recorded plan. When a grantor conveys land that is situated on a street according to a recorded plan showing the street, the grantor and anybody claiming under him or her are permitted to deny the existence of the street for whatever distance is shown on the plan.

The experienced Boston lawyers at Pulgini & Norton can offer sound advice about home purchases and related real estate matters, such as easements. We can represent people in Lowell, Malden, Quincy, and other cities in Massachusetts. Call us at 781-843-2200 or contact us via our online form for a free consultation.