Rights in real property - Implied

Learning Outcomes

This article examines implied rights in real property, specifically focusing on easements created by operation of law (necessity and prior use) and implied reciprocal negative servitudes arising from a common development scheme. After reading this article, you will understand the requirements for establishing these implied rights, how their scope is determined, and the ways in which they can be terminated, enabling you to apply these principles to MBE-style questions.

MBE Syllabus

For the MBE, you are required to understand how rights in land can arise by implication, without an express written agreement. This involves analysing specific factual circumstances to determine if the law implies an easement or a restrictive servitude. You should be prepared to:

  • Identify the requirements for an easement implied by necessity.
  • Analyze the elements needed for an easement implied by prior existing use (quasi-easement).
  • Recognize the conditions under which implied reciprocal negative servitudes are created in subdivisions (common scheme).
  • Distinguish implied rights from expressly created rights.
  • Understand how the scope and termination of implied rights are determined.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. An easement implied by necessity requires proof that:
    1. The use existed prior to the division of the land.
    2. The dominant and servient estates were once under common ownership, and the necessity arose when the estate was severed.
    3. The use has been continuous, open, and adverse for the statutory period.
    4. There is a written agreement, even if unrecorded.
  2. Developer subdivided a large tract into 50 lots according to a recorded plat showing only residential lots. The first 40 deeds contained express covenants restricting use to single-family dwellings. Lot 41 was sold to Buyer without this restriction. Buyer knew most other lots were already developed with single-family homes. If Buyer plans to build a small shop on Lot 41, can owners of the first 40 lots likely enjoin this under the theory of implied reciprocal negative servitudes?
    1. No, because Buyer's deed contained no restriction.
    2. No, because there is no privity between Buyer and the other lot owners.
    3. Yes, if the court finds a common scheme of development existed and Buyer had notice.
    4. Yes, because the developer expressly promised the first 40 buyers the entire tract would be residential.
  3. Which of the following is LEAST likely to be required for an easement implied from prior existing use?
    1. Common ownership of the dominant and servient parcels prior to severance.
    2. The use was apparent and continuous prior to severance.
    3. The use is strictly necessary for the enjoyment of the dominant tenement.
    4. The parties intended the use to continue after division of the property.

Introduction

While interests in land are typically created by express written instruments (deeds, leases, etc.) to satisfy the Statute of Frauds, certain rights can arise by operation of law based on the circumstances surrounding the division or use of property. These implied rights include specific types of easements and restrictive servitudes. They are inferred from the apparent intentions of the parties or the necessities created by the division of land, even without a formal writing. Understanding the distinct requirements for each type of implied right is essential for MBE analysis.

Key Term: Implied Rights Interests in land (such as easements or servitudes) that are not created by an express written agreement but arise by operation of law based on factual circumstances, necessity, or prior use.

Easements Implied by Operation of Law

Easements give the holder the right to use another's land (the servient tenement) for a particular purpose. While often created expressly, easements can also be implied in two main situations: by necessity and from prior existing use.

Easement by Necessity

An easement by necessity arises when an owner of a tract of land conveys part of the tract, and by this division, one of the parcels becomes landlocked, cutting off access to a public road or utility line.

Key Term: Easement by Necessity An easement created by law when a parcel of land is divided (severed) in such a way that one portion is deprived of reasonable access (e.g., landlocked), requiring passage over the other portion.

The creation of an easement by necessity requires proof of two elements:

  1. Common Ownership: The dominant and servient estates were once owned as a single unit.
  2. Necessity at Severance: The necessity arose at the time the property was severed into two (or more) separate estates, making one parcel virtually useless without the easement.
  • Scope: The scope is generally limited to the nature and extent of the necessity. The owner of the servient parcel usually has the right to locate the easement, provided the location is reasonably convenient.
  • Duration: The easement lasts only as long as the necessity continues. If, for example, a new public road is built that provides access to the previously landlocked parcel, the easement by necessity terminates.

Worked Example 1.1

Owner owned Greenacre, a 10-acre parcel. Five years ago, Owner sold the northern 5 acres to Buyer. The northern 5 acres have frontage on a public highway. The southern 5 acres retained by Owner are bordered only by private land on the east, west, and south, with no access to any public road except across Buyer's northern parcel. The deed to Buyer made no mention of an easement. Buyer now refuses to allow Owner to cross the northern parcel to reach the highway. Does Owner have an easement?

Answer: Yes. Owner likely has an easement by necessity. The two parcels were once under common ownership (Owner owned all of Greenacre). When the property was severed by the sale to Buyer, the southern parcel became landlocked, creating a strict necessity for access across Buyer's parcel. This necessity arose at the time of severance. Therefore, an easement by necessity is implied by law.

Easement by Implication (Prior Existing Use / Quasi-Easement)

An easement can also be implied from a use that existed on the land when it was a single tract and that continued after the tract was divided. This is sometimes referred to as an easement implied from prior use or a "quasi-easement."

Key Term: Easement by Implication An easement created by law based on an apparent and continuous use of one part of a property for the benefit of another part that existed when the property was under common ownership and is reasonably necessary for the enjoyment of the dominant part after severance.

Key Term: Quasi-Easement A use of one part of one's own land for the benefit of another part (e.g., using a path across the back lot to reach the front lot) that would constitute an easement if the parts were separately owned. This existing use can become the basis for an implied easement if the property is later divided.

The requirements for an easement by implication are:

  1. Common Ownership: The dominant and servient parcels were previously owned by a single owner.
  2. Existing Use (Quasi-Easement): Before the division, the common owner used one part of the property for the benefit of another part (a "quasi-easement").
  3. Apparent and Continuous Use: The prior use was apparent (discoverable upon reasonable inspection, even if not visible) and continuous at the time of severance.
  4. Reasonable Necessity: The use must be reasonably necessary for the use and enjoyment of the dominant parcel. This is a less stringent standard than the strict necessity required for an easement by necessity.
  • Grant vs. Reservation: Courts are slightly more inclined to find an implied easement when it benefits the buyer (implied grant) than when it benefits the seller (implied reservation), though both are possible.

Worked Example 1.2

Developer owned a large property with a house on the north half and a detached garage on the south half. For years, Developer used a paved driveway located entirely on the south half to access the garage from the street. Developer then sold the north half (with the house) to Buyer 1 and the south half (with the garage and driveway) to Buyer 2. The deed to Buyer 1 did not mention the driveway. Buyer 2 now seeks to prevent Buyer 1 from using the driveway. Can Buyer 1 claim an implied easement?

Answer: Likely yes. An easement by implication probably exists. (1) Developer owned both halves initially (common ownership). (2) Developer established a quasi-easement by using the driveway on the south half to benefit the north half. (3) This use was apparent (paved driveway) and continuous before severance. (4) Use of the driveway is likely reasonably necessary for the enjoyment of the house on the north half, especially if other access is difficult or inconvenient. Buyer 1 can likely enforce the implied easement.

Implied Reciprocal Negative Servitudes (Common Scheme)

In the context of planned subdivisions, courts may imply negative restrictions (reciprocal negative servitudes) on lots even if those restrictions are not contained in the deed for that specific lot. This occurs when a developer manifests a common scheme or plan of restrictions intended to benefit all parcels within the subdivision.

Key Term: Implied Reciprocal Negative Servitude A restriction on land use (a negative servitude) implied by equity on a parcel of land in a subdivision, even if not in the deed, when there is evidence of a common scheme of development and the owner had notice of the restriction.

The requirements for implying reciprocal negative servitudes are:

  1. Common Scheme: The developer must have had a general scheme of residential development which included the defendant's lot when sales began. This scheme may be evidenced by a recorded plat, marketing materials, or express clauses in early deeds.
  2. Intent: The developer intended the restrictions to benefit all parcels in the plan.
  3. Negative Restriction: The implied servitude must be restrictive (negative - e.g., prohibiting commercial use) rather than affirmative (requiring an act - e.g., paying HOA dues).
  4. Notice: The owner of the burdened lot must have had notice of the restriction when they acquired the lot. Notice can be:
    • Actual Notice: Direct knowledge of the restriction.
    • Inquiry Notice: Awareness of facts that would lead a reasonable person to inquire about restrictions (e.g., observing a uniform residential character in the neighborhood).
    • Record Notice: Constructive notice from prior deeds in the owner's chain of title, if those deeds contain the restriction (majority view does not impute notice from deeds of other lots conveyed by a common grantor, but some states do).

Exam Warning

Remember that implied reciprocal negative servitudes can only be implied for negative restrictions (promises not to do something). Affirmative covenants (promises to do something, like pay dues) must generally be in writing to be enforceable against subsequent owners.

Summary

Implied rights in land arise without express written agreement. Easements can be implied by necessity (when severance creates a landlocked parcel) or by prior existing use (based on an apparent, continuous use reasonably necessary for enjoyment after severance). Implied reciprocal negative servitudes can burden lots in a subdivision if there was a common scheme of development and the lot owner had notice of the restrictions, even if the restrictions are absent from that owner's deed. These doctrines allow courts to enforce rights consistent with the likely intent or needs of the parties under specific circumstances.

Key Point Checklist

This article has covered the following key knowledge points:

  • Implied rights (easements, servitudes) arise by operation of law, not express writing.
  • Easement by Necessity requires: (1) prior common ownership, and (2) strict necessity arising at the time of severance.
  • Easement by Implication (Prior Use) requires: (1) prior common ownership, (2) prior apparent and continuous use (quasi-easement), and (3) reasonable necessity for enjoyment after severance.
  • Implied Reciprocal Negative Servitudes arise in subdivisions if: (1) there was a common scheme, (2) intent to benefit all lots, (3) the restriction is negative, and (4) the burdened lot owner had notice (actual, inquiry, or record).
  • Notice is essential for enforcing implied reciprocal negative servitudes against subsequent purchasers.
  • Implied easements are exceptions to the Statute of Frauds; implied reciprocal negative servitudes are an equitable exception (generally only for negative restrictions).
  • Necessity easements terminate when the necessity ceases.

Key Terms and Concepts

  • Implied Rights
  • Easement by Necessity
  • Easement by Implication
  • Quasi-Easement
  • Implied Reciprocal Negative Servitude
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