A key question in the law of easements is whether the right to use the land (the easement itself) is express or implied. As is explained in more detail below, the main difference between the two is that an express easement is created by an agreement or document, while an implied easement arises through certain circumstances.
An express easement is created by a deed or by a will. Thus, it must be in writing. An express easement can also be created when the owner of a certain piece of property conveys the land to another, but saves or reserves an easement in it. This arrangement is known as an “easement by reservation.”
As mentioned above, even when no document or agreement has created an express easement, an easement right may still be understood (or “implied”) by a situation or circumstances. To create an easement by implication, three requirements must be met:
- The easement must be at least reasonably necessary to the enjoyment of the original piece of property.
- The land must be divided (or “severed”), so that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different new owners.
- The use for which the implied easement is claimed must have existed prior to the severance or sale.