Welcome back! Last week we discussed easements and the distinctions between private and public easements. However, there is another distinction that needs to be addressed about easements. And that distinction is between express and implied easements.
The basic distinctive component of an express easement is that it must be in writing. In fact, the only way an easement can be considered “express” is when both parties have a signed document outwardly stating the details of the easement. Once the easement is finalized, and both parties have accepted all of the terms, it must be recorded in the county’s land records. Specifically, within the county where the properties of the easements are located. Therefore, it is critical for all parties involved to understand the express components of the easement. On the other hand, easements can also be made temporary in nature. In these instances, the easement will only last for a specified amount of time. And therefore will be terminated at some point. However, in those situations, the easement never transfers to the new property owner.
A little more complicated than express easements, implied easements come in two forms. However, these easements never started out in writing. In fact, there are only a few instances where an implied easement can come up.
- Easements by necessity: More often than not, courts will imply an easement by necessity when one piece of land is dependent on the use of an adjoining piece of land. For instance, if you own a property that contains a shared private driveway, courts are often very likely to deem that shared driveway an easement. Although this easement may not be in writing, a court will establish it as such for the convenience of everyone involved.
- Easements by prior use: Typically, a prior use can invoke the use of an easement. For instance, if you continuously use property without a written easement for a continuous time period. In these cases, courts will more often than not see it as an implied easement.
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