PastPaperHero | Rights in real property

Learning Outcomes

This article examines implied rights in real property for MBE success, including:

How easements can arise by operation of law—necessity, prior existing use, prescription, and estoppel—and how to match each doctrine to the facts presented.
How to identify the dominant and servient estates and determine when an implied easement is appurtenant and thus binds successors in title.
How implied reciprocal negative servitudes are created in subdivisions under a common scheme and enforced as equitable servitudes by injunction.
How the Statute of Frauds, recording acts, notice principles, and marketable-title doctrine interact with implied rights and protect or defeat bona fide purchasers.
How courts analyze scope, overuse, and relocation questions and how implied rights may terminate through merger, abandonment, prescription, release, or the end of necessity.
How to distinguish implied easements from licenses, adverse possession, express easements, and written covenants/equitable servitudes, and to select the correct remedy.
How to spot common MBE traps involving negative easements, changed conditions in subdivisions, and attempts to impose affirmative obligations through implication alone.

MBE Syllabus

For the MBE, you are required to understand how rights in real property can arise by implication rather than by express written grant, with a focus on the following syllabus points:

Easements implied by necessity: elements, scope, and termination.
Easements implied from prior existing use (quasi-easements).
Easements acquired by prescription and by estoppel (implied easements).
Distinguishing implied easements from licenses and adverse possession.
Creation of implied reciprocal negative servitudes under a common development scheme.
Notice requirements (actual, inquiry, and record) for enforcing implied servitudes.
Differences between implied easements and equitable servitudes/real covenants (especially remedies).
Termination and modification of implied rights in land.
Interaction between implied rights, the Statute of Frauds, recording acts, and marketable title.

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.

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.
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.
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.
Which combination of elements most accurately describes an easement by prescription (majority rule)?
1. Exclusive, open and notorious, continuous, and hostile use for the statutory period.
2. Open and notorious, continuous, hostile use for the statutory period, without consent.
3. Open and notorious, continuous use with the owner’s permission for the statutory period.
4. Actual, open and notorious, continuous, hostile possession for the statutory period.
A landowner orally permits a neighbor to use a strip of land to build a driveway. Relying on the permission, the neighbor spends substantial money grading and paving the strip. After the driveway is complete, the landowner fences it off and revokes permission. Which doctrine is most likely to help the neighbor?
1. Easement by necessity.
2. Easement by prescription.
3. Easement by estoppel.
4. License, which is always revocable at will.

Introduction

Most interests in land are created by express written instruments—deeds, leases, and recorded covenants—that satisfy the Statute of Frauds and are easily discoverable in a title search. However, real property law also recognizes a set of implied rights that arise without an express written grant. These rights are inferred from factual circumstances such as prior use, necessity, long-term use, or common development schemes.

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

On the MBE, implied rights show up most often in three clusters:

Implied easements (by necessity, by implication from prior use, by prescription, and by estoppel).
Implied reciprocal negative servitudes in subdivisions (common scheme restrictions).
Related issues of notice, scope, priority, and termination.

These doctrines are critical because they form exceptions to both the Statute of Frauds and the recording system. A later purchaser may find their land burdened by a right that is invisible in the records but implied in equity or at law. That is why MBE questions often ask you to determine whether a later purchaser is bound even though their deed is silent.

Before turning to specific doctrines, recall basic easement terminology.

Key Term: Dominant Estate
The parcel that benefits from an easement or servitude (for example, the land that gets access over a neighbor’s property).

Key Term: Servient Estate
The parcel that is burdened by an easement or servitude (for example, the land that must allow access or refrain from certain uses).

Key Term: Dominant Tenement
Another term for dominant estate, referring to the parcel that benefits from an easement.

Key Term: Appurtenant Easement
An easement whose benefit attaches to a particular dominant parcel of land; it automatically passes with transfers of that parcel, regardless of whether it is mentioned in the deed.

Key Term: Easement in Gross
An easement whose benefit is personal to a particular holder rather than attached to a dominant parcel (for example, a utility company’s right to run lines across many properties); it generally does not attach to any land owned by the holder.

Implied easements are almost always appurtenant: they exist to make a particular parcel useable, so they travel with that parcel when it is sold. On the MBE, if you see an implied easement and there is clearly a dominant parcel, assume the easement is appurtenant unless the facts strongly indicate a purely personal right.

Why Implied Rights Exist

Courts imply rights in land for several policy reasons:

To effectuate what the parties probably intended but failed to write down.
To avoid rendering land practically useless (for example, creating landlocked parcels).
To recognize long-standing patterns of use that owners have tolerated for many years.
To protect buyers in subdivisions who reasonably rely on a development’s apparent uniform scheme.

Because implied rights can burden land without appearing in the records, they sit at the intersection of property doctrine and equity. Many rules are designed to balance stability of title (protecting bona fide purchasers) against fairness and reasonable expectations.

Key Term: Scope of Easement
The nature and extent of the use permitted by an easement, determined by its purpose and by the circumstances or terms under which it was created.

The remainder of this article focuses on:

How different implied doctrines are created.
How far each implied right extends (scope).
When and how these rights bind successors in title.
How implied rights are terminated.

Easements Implied by Operation of Law

Easements give the holder a right to use another’s land (the servient estate) for a specific purpose. Many easements are created expressly (by deed), but several types arise by implication.

Key Term: Implied Easement
An easement that arises from factual circumstances (such as necessity, prior use, long use, or reliance), without an express written grant, and that is recognized by law as a property interest.

General Features of Implied Easements

Some general rules apply to all implied easements:

They arise from factual circumstances, not from written grants.
They are interests in land (property rights), not mere contracts.
They are typically appurtenant and therefore run with the land: they automatically transfer with the dominant estate, even if not mentioned in later deeds.
They usually are not subject to the Statute of Frauds because they are not created by writing.
They are not created by recording; however, they can bind later purchasers who have notice of the circumstances giving rise to the easement.
They require no privity of estate between the original parties beyond whatever ownership relationship produced the circumstances (for example, prior common ownership for necessity and prior use).

Key Term: License
A revocable privilege or permission to enter or use another’s land that does not create a property interest and generally does not bind successors (for example, a ticket to a theater or an oral permission to cross land).

A key exam task is distinguishing an implied easement (a nonrevocable property right) from a mere license. If the facts show long-term, necessary, or relied-on use and courts would find it inequitable to allow revocation, you are usually in easement territory.

Implied Easements and the Statute of Frauds

Under the Statute of Frauds, transfers of interests in land must usually be in writing. Implied easements are an important exception:

Because the easement is created by law in response to circumstances, there is no “grant” that needs to be in writing.
The Statute of Frauds does not bar courts from implying an easement from the conduct and relationship of the parties.

This is similar in spirit to doctrines like part performance or estoppel that allow enforcement of oral land-sale contracts. In both contexts, courts are willing to depart from the strict writing requirement when fairness and reasonable expectations demand it.

Implied Easements and Recording Acts

Key Term: Bona Fide Purchaser (BFP)
A purchaser for value who takes without notice (actual, inquiry, or record) of a prior interest; under most recording acts, a BFP may take free of certain unrecorded interests.

Recording acts protect BFPs against prior unrecorded interests, but implied easements present special issues:

Implied easements by necessity or prior use are not created by, and often are not reflected in, any recorded instrument.
A subsequent purchaser with no notice of the facts creating the easement may qualify as a BFP.
However, if the circumstances putting a reasonable buyer on notice are visible (for example, a clearly used driveway or path), the buyer will have inquiry notice and will be bound.

Key Term: Marketable Title
Title reasonably free from the risk of litigation, meaning that a reasonable buyer would accept it. Undisclosed easements and private encumbrances can render title unmarketable.

Because easements (including implied easements) are encumbrances, an undisclosed implied easement can make title unmarketable at the contract stage. A buyer discovering an undisclosed access right burdening their land may be able to rescind before closing. After closing, the deed controls, and the buyer’s remedy—if any—is usually based on deed covenants, not on lack of marketable title.

Distinguishing Implied Easements from Other Interests

The MBE expects you to distinguish implied easements from:

Licenses: oral permissions, revocable at will unless estoppel applies.
Adverse possession: gives the possessor title to land; a prescriptive easement gives only a use right.
Real covenants and equitable servitudes: promises about land use that run with land; often written and enforced by damages (real covenants) or injunction (equitable servitudes).
Implied reciprocal negative servitudes: a specific kind of equitable servitude arising from a common scheme, discussed later.

A common exam trap is confusing an easement with a restrictive covenant. An easement by necessity gives someone a right to cross land; a negative servitude restricts what the owner can do on their own land (for example, “residential only”).

Easement by Necessity

An easement by necessity arises when a tract is divided and, as a result of the division, one parcel lacks access (or essential utilities) unless it crosses another parcel from the original tract.

Key Term: Easement by Necessity
An easement created by law when severance of commonly owned land leaves a parcel without reasonable access to a public road or other essential outlet, requiring a strict necessity that exists at the moment of severance.

Two core elements must be met (majority rule):

Prior common ownership: The dominant and servient estates were once held in common by a single owner.
Necessity at the time of severance: When the common owner divided the land, one parcel became virtually landlocked (or effectively unusable) without crossing the other parcel. Necessity must exist at the moment of severance, not arise later.

Key Term: Strict Necessity
A high level of need: there is no legal or practical access to a public road (or other essential outlet) without the easement; mere convenience or cheaper access is insufficient.

Some courts extend necessity to include essential utilities (for example, water, sewer, electricity) where a dwelling would be effectively unusable without them, but on the MBE the classic example is access to a public road.

Mere inconvenience or a shorter route is not enough. If the dominant parcel has another legally permissible access route—even if it is longer, steeper, or more expensive—strict necessity is usually not satisfied.

Why Common Ownership Matters

The requirement of prior common ownership reflects a fairness rationale:

The law assumes that when an owner divides land in a way that leaves a parcel landlocked, the owner intended to grant whatever access is necessary for the parcel to be usable.
Courts do not impose easements by necessity on a neighbor’s land that was never part of the same tract, even if using that neighbor’s land would be more convenient.

Thus, if A’s land is landlocked but the only feasible access is across B’s land, and A and B never shared common ownership, no easement by necessity arises. A’s remedy would be to negotiate with B or, in some states, seek a statutory “private way of necessity” (a separate, statutory doctrine not commonly tested on the MBE).

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. The two parcels were once under common ownership. When Owner severed the land by selling the northern portion, the southern portion became landlocked. The necessity existed at the moment of severance, and the necessity is strict—without a way across Buyer’s land, Owner has no access to a public road. An easement by necessity is implied by law, limited in scope to what is reasonably required to reach the highway. The easement lasts only while no other reasonable access exists.

Worked Example 1.2

Donna owns Brownacre and divides it, selling the west portion to Wayne while retaining the east portion. The west portion fronts on a public road running along its north boundary. The east portion also touches the same public road along its eastern edge, although the access is narrow and sloped. When he purchased the property, Wayne asked Donna if he could cross her land because it was more convenient than using the road that abuts the north side of his property. Wayne now claims an easement by necessity over Donna’s land. Is he correct?

Answer:
No. Although there was prior common ownership, strict necessity is lacking. Wayne’s land directly abuts a public road; he simply prefers a more convenient route across Donna’s land. Easements by necessity require true necessity, not mere convenience or a shorter route, so Wayne does not obtain an easement by necessity.

Additional Exam Traps for Easements by Necessity

Necessity must exist at severance: If a parcel is not landlocked when the tract is divided, but later becomes landlocked due to events like flooding or a neighbor revoking a license, no easement by necessity arises from that severance.
Necessity across a third party’s land: The easement by necessity must be across land that was part of the commonly owned tract. Courts will not impose a necessity easement across land that was never under common ownership, even if that route is much better.
Duration: The easement by necessity arises at the moment of severance (even if unrecognized for years) and terminates automatically once the strict necessity ends.

Scope and Location

The scope is limited to what is reasonably required to overcome the necessity (for example, a driveway wide enough for normal vehicles, not a multi-lane road).
If no specific location is fixed by prior use or agreement, the servient owner typically may designate a reasonable route, as long as it provides the required access and does not unreasonably interfere with the dominant estate’s use.
Modern authority in many jurisdictions allows the servient owner to relocate the easement to another equally convenient location at their own expense, provided this does not materially lessen the utility of the easement or increase the burden on the dominant estate. Older cases disfavor unilateral relocation, so read the fact pattern carefully.

Duration and Termination

An easement by necessity lasts only as long as the necessity continues.
If the dominant estate acquires other reasonable legal access—through purchase of a strip to the road, a new public road, or a separate express easement—the necessity ends and the easement by necessity terminates automatically.
Once necessity ends, no compensation is owed to the servient owner for termination; the easement simply ceases.
After the necessity has ended and the easement has terminated, it does not “revive” if access is later lost again.

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

An easement can also be implied from a use that existed when the property was held as a single tract and that appears intended to continue after severance. This is sometimes called an easement implied from prior use or a quasi-easement.

Key Term: Easement by Implication
An easement created by law when, before severance, an owner uses one part of land to benefit another part in a way that is apparent, continuous, and reasonably necessary, such that the parties are presumed to have intended the use to continue after division.

Key Term: Quasi-Easement
A use by an owner of one part of their land in favor of another part (for example, a driveway crossing the back lot) that would be an easement if the parts were separately owned; this prior use can form the basis of an implied easement when the land is severed.

The requirements (majority rule) are:

Common ownership before severance: A single owner holds the entire tract initially.
Existing quasi-easement before severance: The owner uses one portion of the land for the benefit of another portion (for example, a path, driveway, sewer line, or drain).
Apparent and continuous use at the time of severance: The use must be apparent (discoverable on reasonable inspection, even if not visually obvious—for example, visible manhole covers indicating underground pipes) and continuous (not sporadic or occasional).
Reasonable necessity: The use must be reasonably necessary to the enjoyment of the dominant parcel, a lower standard than strict necessity.

Key Term: Reasonable Necessity
A level of need where the use materially enhances the value or practicality of the dominant estate, even though alternate routes or methods are theoretically possible.

The central idea is presumed intent. Because the owner was using the land as if an easement existed before the sale, courts infer that the parties intended that pattern of use to continue after severance.

Historically, courts were more reluctant to find implied easements in favor of the grantor (implied reservations) and sometimes required greater necessity. Modernly, many courts treat implied grants and reservations similarly, but the MBE may still expect recognition that courts are somewhat more willing to imply an easement for the grantee than for the grantor.

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 remain possible if the elements are met.

Worked Example 1.3

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. Developer initially owned both halves (common ownership). Before severance, Developer used the driveway over the south half (quasi-easement) to access the garage serving the house. The use was apparent (a paved driveway) and continuous. Continued use of the driveway is reasonably necessary for convenient and practical access to the house and garage, even if an expensive or difficult alternate route is possible. Courts will likely imply an easement by prior use in favor of Buyer 1.

Worked Example 1.4

Olivia owns Purpleacre. Her house is on the west side, and there is a well on the east side. For many years, Olivia regularly crossed the east side to reach the well, and the path is visible on the ground. Olivia later sells the east half (with the well) to Sam, without expressly reserving an easement in the deed. Olivia continues to cross Sam’s land to reach the well, and Sam sues to stop her. Does Olivia have an implied easement?

Answer:
Probably yes. Olivia originally owned the entire tract (common ownership). Before severance, she used the east half (quasi-easement) to supply water to the house on the west half. The path and well were apparent and the use was continuous. Access to the well is reasonably necessary to the enjoyment of the house (especially if no indoor plumbing exists). A court is likely to find an easement by implication in favor of Olivia, even though it benefits the grantor.

Apparent and Continuous Use

“Apparent” does not mean the use is literally visible at all times; it means it is discoverable on reasonable inspection:

A visible road, path, culvert, or drainage ditch is apparent.
Underground pipes may be “apparent” if their existence is indicated by surface features (manholes, clean-out pipes) or by the layout of structures.

“Continuous” does not mean constant use. It means the pattern of use is regular and ongoing, consistent with the nature of the use. A driveway used several times a week or a sewer line in continuous service is “continuous.”

Common Variants: Easements Implied from Plats

Many states recognize a closely related doctrine: when a developer records a subdivision plat showing streets, alleys, or parks and then sells lots by reference to that plat, each lot owner obtains an implied easement to use the streets and other depicted common areas, even if the deed does not mention them. This is often treated as an application of easement by prior use or implied grant.

On the MBE, if you see purchasers of subdivision lots arguing about whether they can use streets shown on a recorded map, an implied easement arising from the plat is a strong candidate.

Scope and Termination of Easements by Implication

Scope: The scope is defined by the nature and extent of the prior use at the time of severance and what is reasonably necessary for enjoyment of the dominant estate. Minor increases in intensity that are reasonably foreseeable (for example, more vehicle trips as the family grows) are usually allowed; fundamentally different uses that impose a substantially greater burden are not.
Termination: Easements by implication do not automatically end when they become less necessary. They terminate through the same mechanisms as express easements: release (a writing), merger (same person comes to own both parcels), abandonment (non-use plus intent to relinquish), prescription (servient owner obstructs use for the statutory period), estoppel, or condemnation.

Easement by Prescription

An easement may also be implied based on long-term use resembling adverse possession.

Key Term: Easement by Prescription
An easement acquired through open and notorious, continuous, adverse (hostile) use of another’s land for the statutory period, similar to adverse possession but involving use rather than possession.

The elements (majority rule) mirror adverse possession except that exclusivity is not required:

Open and notorious use: The use is visible and obvious enough that a reasonable true owner would be aware of it.
Continuous and uninterrupted for the statutory period: The use occurs as frequently as is appropriate for the type of easement claimed (for example, seasonal use for a lake house can be “continuous”) and is not interrupted by the true owner in a way that breaks the prescriptive period.
Adverse or hostile: The use occurs without the owner’s permission and under a claim of right, meaning the user treats the use as of right, not as a favor.
Statutory period: The use continues for the full limitations period (often the same as for adverse possession, commonly 10–20 years depending on the state; on the MBE, the exact number rarely matters unless stated).

Exclusivity is not required because many people can use the same path and still acquire a prescriptive right.

Key Term: Negative Easement
An easement that restricts the servient owner from doing something on their land (for example, blocking light or air). Under traditional rules, negative easements must be created by express writing, not by implication or prescription.

An easement by prescription is always affirmative—it allows the holder to do something on the servient land. A negative easement generally cannot be created by prescription.

Exam tip: Permission defeats adversity. If the owner grants permission (a license), use is not adverse and cannot ripen into a prescriptive easement unless the user later clearly exceeds or rejects that permission and continues in a hostile manner for the full statutory period.

Tacking and Successive Users

As with adverse possession, users can “tack” successive periods of adverse use if there is privity between them (for example, A sells her land to B, and B continues to use the same path across O’s land). Tacking allows the current claimant to count a predecessor’s adverse use toward the statutory period.

Presumptions About Permission

Some jurisdictions apply presumptions about whether use is adverse or permissive:

Use of unenclosed, uncultivated rural land may be presumed permissive absent evidence to the contrary.
Long-standing use of a private road in a developed area is more likely to be treated as adverse, especially if the user maintains the road.

On the MBE, focus on explicit facts: if the owner expressly gave permission, adversity is missing; if the owner simply remained silent, adversity is usually satisfied.

Worked Example 1.5

For 25 years, Neighbor has used a visible dirt path across Owner’s field to reach a nearby lake. Owner never gave permission and occasionally saw Neighbor using the path but did nothing. The state’s statutory period is 20 years. Owner now erects a fence blocking the path and tells Neighbor to stay off. Can Neighbor claim a prescriptive easement?

Answer:
Yes. Neighbor’s use was open and notorious (visible path across the field), continuous for more than the 20-year statutory period, and adverse (never permitted by Owner). Exclusivity is not required. Neighbor has likely acquired an easement by prescription to use the path to reach the lake, limited in scope to the kind and extent of use established during the prescriptive period.

Scope of a Prescriptive Easement

The scope of a prescriptive easement is defined by the character and extent of the use during the prescriptive period:

If the prescriptive use was only for walking, the easement is limited to pedestrian use.
If the prescriptive use included regular car travel, a vehicular easement may be recognized.
A substantial change—such as converting a footpath into a heavy-truck route—will exceed the scope and constitute a trespass.

Easement by Estoppel (Irrevocable License)

A final way an implied easement can arise is through estoppel, where a licensee has relied to their detriment on permission to use land.

Key Term: Easement by Estoppel
An easement created when a landowner gives another permission to use the land, the other reasonably relies on that permission by making substantial improvements or expenditures, and it would be inequitable to allow the owner to revoke the permission.

The typical pattern:

The owner gives permission (a license) to use the land.
The user reasonably and foreseeably relies on that permission—often by spending money or making permanent improvements (for example, building a driveway or structure that depends on the access).
The owner later attempts to revoke permission.
A court uses estoppel to prevent revocation, effectively treating the license as an easement.

This doctrine functions as a kind of “detrimental reliance” exception to the general rule that licenses are revocable at will.

Worked Example 1.6

Owner orally tells Neighbor, “You can use the strip along my boundary to build a driveway to your new garage.” Relying on this, Neighbor spends thousands grading, paving the strip, and building the garage with its only access via the driveway across Owner’s land. After the work is completed, Owner fences off the strip and tells Neighbor to stop using it. Does Neighbor have any rights?

Answer:
Yes. Owner granted a license, and Neighbor reasonably relied by making substantial improvements that depend on continued use of the driveway. It would be inequitable to allow Owner to revoke permission after such reliance. A court is likely to find an easement by estoppel, making the license irrevocable for at least as long as necessary to protect Neighbor’s investment (often treated as permanent).

Duration and Transferability of Easements by Estoppel

Courts vary on how long an easement by estoppel lasts:

Some treat it as lasting as long as the reliance-based improvements remain in use (for example, as long as the garage stands).
Others treat it as effectively permanent, especially when the reliance was substantial.

Most courts allow the right to bind successors of the licensor who take with notice of the reliance, treating the interest like an appurtenant easement.

On the MBE, if estoppel is found, assume the right is durable and enforceable, not a short-lived personal privilege.

Scope of Implied Easements

The scope of any implied easement—whether by necessity, prior use, prescription, or estoppel—is shaped by:

The purpose that justified implying the easement (access, drainage, utilities, etc.).
The nature and extent of the prior or prescriptive use.
Reasonable expectations of the parties at the time the easement arose.

Courts use a reasonableness and foreseeability standard:

Normal, foreseeable growth in use is usually allowed (for example, more car trips as the family grows; using a driveway for standard-size delivery vehicles).
A major change in the character or intensity of use that significantly increases the burden on the servient estate is not allowed and can be treated as trespass.

Worked Example 1.7

A prescriptive easement is established for pedestrian and light-vehicle access along a path. Years later, the dominant owner begins running heavy commercial trucks along the route several times a day, causing damage to the servient land. The servient owner sues.

Answer:
The new use likely exceeds the scope of the easement. The original prescriptive use involved pedestrian and light-vehicle traffic; heavy commercial trucking is qualitatively different and imposes a substantially greater burden. The servient owner may enjoin the excessive use or treat it as a trespass beyond the easement’s scope. The dominant owner remains entitled to use the path for purposes consistent with the original use.

Apportionment and Subdivision

Because implied easements are usually appurtenant:

If the dominant estate is subdivided, the easement normally benefits each parcel, so long as the total use remains within the easement’s scope and does not unreasonably burden the servient land.
If the burden becomes significantly greater than what was reasonably contemplated, a court may limit or deny use by some parcels.

Termination of Implied Easements (General Rules)

Most implied easements terminate the same way as express easements:

Release – A writing from the easement holder surrendering the right.
Merger – One person comes to own both the dominant and servient estates in fee simple; the easement is extinguished.
Abandonment – Non-use plus conduct clearly showing intent to abandon (mere non-use is not enough). Examples include building a permanent structure blocking one’s own access route or recording a release.
Prescription – The servient owner blocks use and maintains the obstruction for the statutory period, thereby acquiring a prescriptive right to be free of the easement.
Estoppel – The servient owner reasonably relies on the easement holder’s statement or conduct indicating the easement will no longer be used (for example, holder tells servient owner to remove a bridge and the servient owner spends money doing so).
Condemnation or destruction – Government condemnation of the servient estate or physical destruction that permanently eliminates the subject of the easement (for example, destruction of a private road in a condemnation taking) can terminate the easement.

The special rule for easements by necessity is that they automatically end when necessity ends, even without any release or abandonment.

Implied Reciprocal Negative Servitudes (Common Scheme)

In planned subdivisions, courts may imply negative restrictions on lots even when the buyer’s deed omits the restriction. These are known as implied reciprocal negative servitudes or servitudes implied from a common scheme.

Key Term: Equitable Servitude
A nonpossessory interest in land—usually a restriction on use—enforceable in equity by injunction when the burden and benefit run with the land, even if some technical covenant requirements (like privity) are missing.

Key Term: Implied Reciprocal Negative Servitude
An equitable restriction on land use, implied on a lot in a subdivision when there is evidence of a common development scheme and the lot owner had notice, even though the restriction is not written in that owner’s deed.

These servitudes are a subset of equitable servitudes. They are reciprocal because each lot is both benefitted and burdened by the scheme, and negative because they require owners to refrain from certain uses (for example, “residential only”).

Common Scheme and Intent

The key to an implied reciprocal negative servitude is a common scheme of development.

Key Term: Common Scheme of Development
A general plan by a developer to impose similar restrictions on a subdivision so that all lots are subject to a consistent set of limitations (for example, residential-only, no mobile homes, single-story homes).

Courts infer such a scheme from:

A recorded plat or map showing the subdivision and indicating intended uses (for example, “residential” lots, designated school or park).
A pattern of similar restrictions in many early deeds from the developer (for example, the first 30 out of 40 lots all have a “single-family home only” covenant).
Uniform building patterns and use that strongly suggest a plan, sometimes combined with oral representations by the developer to early buyers.

The developer must have intended the restriction to benefit all lots within the scheme, including the lot later claimed to be burdened. Timing matters: the scheme must exist when the lot in question is conveyed. If the developer imposes restrictions only after selling a particular lot with no restriction and no notice, that lot is usually not bound.

Negative, Not Affirmative

Implied reciprocal negative servitudes are limited to negative restrictions—promises not to do something, such as:

No commercial uses.
Residential use only.
No buildings over two stories.
No mobile homes.
No detached storage sheds.

They are not used to impose affirmative obligations (like paying HOA dues or maintaining a fence); affirmative covenants generally must be in writing to bind successors.

Notice Requirements

A purchaser is bound only if they had notice of the restriction when they took title. Notice can be:

Key Term: Actual Notice
Direct knowledge of the restriction (for example, the purchaser is told about it or reads it in another deed).

Key Term: Inquiry Notice
Notice arising from visible facts that would cause a reasonable buyer to inquire (for example, an obviously uniform residential subdivision that appears to follow certain restrictions).

Key Term: Record Notice
Constructive notice arising from recorded documents in the buyer’s chain of title or, in some jurisdictions, other recorded documents by a common grantor.

On the MBE:

Actual notice is straightforward—if the buyer knows of the restriction, they are bound.
Inquiry notice often comes from neighborhood appearance: if all nearby lots are used for single-family residences matching a recorded plan, a buyer is on inquiry notice that such a restriction might exist.
Record notice is generally limited to documents in the purchaser’s chain of title, though some jurisdictions impute notice of recorded restrictions on other lots from the same developer if a common plan is evident.

Worked Example 1.8

Developer subdivides a 100-acre tract into 60 lots according to a recorded plat showing only residential lots and a central 10-acre school site. The first 50 deeds contain a covenant restricting use to single-family residential purposes. Lot 51 is sold to Buyer without any restriction in the deed. Buyer knows that the subdivision appears entirely residential and has reviewed the recorded plat. Buyer now plans to build a small grocery store on Lot 51. Can the owners of the earlier lots enjoin Buyer’s commercial use?

Answer:
Most likely yes. The recorded plat and the consistent residential covenants in the first 50 deeds show a common scheme of residential development that includes Lot 51. Buyer had at least inquiry notice (and arguably record notice via the recorded plat) of the residential scheme. Even though Buyer’s deed contains no restriction, an implied reciprocal negative servitude arises, and the earlier lot owners can seek an injunction to prevent the commercial use.

Remedy and Relationship to Covenants

For implied reciprocal negative servitudes:

The usual remedy is an injunction—a court order preventing the prohibited use.
Money damages for breach of a real covenant are less commonly the focus of MBE questions when the restriction is implied rather than written.

MBE questions often blur the labels “covenant,” “equitable servitude,” and “servitude.” Focus on:

Whether a common scheme existed.
Whether the restriction is negative.
Whether the defendant had some form of notice.

Termination and Changed Conditions

Implied reciprocal negative servitudes can terminate like written covenants and servitudes:

By release (a written agreement by all benefitted owners).
By merger (one owner acquires all benefitted and burdened parcels).
By estoppel (benefitted owners lead a burdened owner reasonably to believe the restriction will no longer be enforced and the owner changes position in reliance).
By abandonment (systematic, long-term nonenforcement and widespread violations, such that a reasonable person would conclude the restriction is no longer in effect).
By condemnation (government taking of the property).
By changed conditions: If conditions in the neighborhood have changed so extensively that the original purpose of the restriction can no longer be accomplished, courts may refuse to enforce it.

However, changed conditions must be substantial and general, not just isolated violations. A few nonconforming uses do not destroy an entire scheme.

Worked Example 1.9

A subdivision was created 60 years ago with an implied residential-only scheme. All lots were originally used for single-family homes, but over time a busy commercial district has developed just outside the subdivision boundaries. Within the subdivision, however, nearly all lots remain residential. One owner now wants to build a small office building and argues that surrounding commercial growth has destroyed the residential character, so the restrictions should no longer apply. Is a court likely to enforce the restriction?

Answer:
Yes. The changed-conditions doctrine requires that conditions within the restricted area have changed so much that the restriction’s purpose cannot be accomplished. Here, most lots within the subdivision remain residential, so the residential character of the subdivision can still be preserved. External commercial growth alone usually is not enough to terminate the servitude.

Timing and Early Conveyances Without Restrictions

A recurring exam pattern:

A developer sells a few lots before any common scheme is established, with no restrictions.
Later, the developer adopts a scheme and sells many lots with uniform restrictions.
Owners under the scheme attempt to enforce restrictions against the early, unrestricted lots.

In this scenario, the early lots are generally not bound by the later scheme, because:

The common plan did not exist when they were conveyed.
They did not purchase with notice of any scheme.

By contrast, lots sold later—after a scheme is evident—can be bound even if their individual deeds omit the restriction, so long as they had notice of the scheme.

Comparing Implied Easements and Implied Servitudes on the MBE

It is easy to mix up implied easements with implied reciprocal negative servitudes. Keep these distinctions in mind:

Type of right:
- Implied easements: rights to use another’s land (access, utilities, drainage).
- Implied reciprocal negative servitudes: restrictions on how land may be used (no commercial use, residential-only).
Creation:
- Implied easements: arise from necessity, prior use, long use (prescription), or reliance (estoppel), usually involving a relationship between two parcels (dominant and servient).
- Implied reciprocal negative servitudes: arise from a developer’s common scheme in a subdivision plus notice, typically involving many parcels.
Writing:
- Implied easements: no writing required; they are exceptions to the Statute of Frauds.
- Implied reciprocal negative servitudes: no writing is required in the deed of the burdened lot; the scheme is usually evidenced by some recorded documents (plats, early deeds) or clear patterns.
Remedy:
- Implied easements: enforced by protecting the right to use (ejectment, injunction against interference, declaratory judgment).
- Implied reciprocal negative servitudes: enforced by injunction to stop the prohibited use.
Role of notice:
- Implied easements: a subsequent purchaser is bound if they have notice (actual or inquiry) of the easement’s existence or the visible use suggesting it.
- Implied servitudes: notice (actual, inquiry, or record) is essential; without notice, a bona fide purchaser typically is not bound by the common-scheme restriction.
Negative easements vs. equitable servitudes:
- Negative easements (for light, air, lateral support, etc.) generally must be created by express writing; they are rare on the MBE.
- Restrictions implied from a common scheme are equitable servitudes, not negative easements, and are enforced by injunction.

Summary

Implied rights in land arise without express written grants and often without any recorded document. For the MBE:

Easements by necessity require prior common ownership and strict necessity at severance, and terminate when necessity ends.
Easements by implication (prior existing use) require prior common ownership, an apparent and continuous quasi-easement at severance, and reasonable necessity, with courts inferring an intent that the use continue.
Easements by prescription require open and notorious, continuous, adverse use for the statutory period (no exclusivity requirement), and are always affirmative.
Easements by estoppel arise from licensed use followed by substantial, reasonable reliance, making the license effectively irrevocable to avoid injustice.
Implied easements are generally appurtenant and run with the land; they are not subject to the Statute of Frauds or recording acts, but can bind purchasers with notice of the circumstances.
Negative easements generally must be created by express writing; they are not created by implication or prescription. Do not confuse them with equitable servitudes implied from a common scheme.
The scope of implied easements is limited by their purpose and by the character and extent of the use that gave rise to them; significant expansions can be treated as trespass.
Implied easements terminate by standard easement doctrines (release, merger, abandonment, prescription, estoppel, condemnation), plus automatic termination of easements by necessity when necessity ends.
Implied reciprocal negative servitudes arise in subdivisions from a common scheme plus notice and impose negative restrictions enforceable by injunction.
Notice for implied servitudes can be actual, inquiry, or record; without notice, a bona fide purchaser is generally not bound.
Changed conditions can terminate equitable servitudes only when the original purpose of the restriction can no longer be achieved within the restricted area; external changes alone are usually insufficient.
On exam questions, focus on identifying the correct doctrine (necessity, prior use, prescription, estoppel, or common-scheme servitude), checking the required elements, and determining whether successors are bound given the notice facts.

Key Point Checklist

This article has covered the following key knowledge points:

Implied easements are interests in land that arise from circumstances (necessity, prior use, prescription, estoppel) without express writing.
Easement by necessity requires prior common ownership and strict necessity at the time of severance; it terminates automatically when necessity ceases.
Easement by implication (prior use) requires prior common ownership, an apparent and continuous quasi-easement at severance, and reasonable necessity to the enjoyment of the dominant estate.
Easement by prescription requires open and notorious, continuous, adverse use for the statutory period; exclusivity is not required, and the easement is always affirmative.
Easement by estoppel arises when a licensee reasonably and substantially relies on permission, making the license effectively irrevocable to avoid injustice.
Implied easements are usually appurtenant; they run with the land and transfer automatically with the dominant parcel.
Negative easements generally must be created by express writing; they are not created by implication or prescription.
Implied easements are not created by recording but can bind purchasers who have notice (actual or inquiry) of the use or necessity.
The scope of implied easements is limited by their purpose and the extent of prior or prescriptive use; substantial increases or qualitatively different uses may exceed the scope.
Implied easements terminate by standard easement doctrines: release, merger, abandonment (non-use plus intent), prescription (blockage for the statutory period), estoppel, condemnation, and automatic termination of easements by necessity when necessity ends.
Implied reciprocal negative servitudes arise in subdivisions from a common scheme plus notice, and impose negative restrictions on use that are enforceable by injunction as equitable servitudes.
Notice for implied servitudes can be actual, inquiry, or record; without notice, a bona fide purchaser is generally not bound by the common-scheme restrictions.
Implied reciprocal negative servitudes are distinct from implied easements: they restrict use (negative), arise from common schemes, and are enforced in equity.
Changed conditions can terminate equitable servitudes only when conditions within the restricted area have changed so extensively that the original purpose of the restriction can no longer be achieved.
On MBE fact patterns, distinguishing implied easements from licenses, adverse possession, real covenants, and equitable servitudes is critical to identifying the correct rule and remedy.

Key Terms and Concepts

Implied Rights
Dominant Estate
Servient Estate
Dominant Tenement
Appurtenant Easement
Easement in Gross
License
Bona Fide Purchaser (BFP)
Marketable Title
Implied Easement
Easement by Necessity
Strict Necessity
Easement by Implication
Quasi-Easement
Reasonable Necessity
Easement by Prescription
Negative Easement
Easement by Estoppel
Scope of Easement
Equitable Servitude
Implied Reciprocal Negative Servitude
Common Scheme of Development
Actual Notice
Inquiry Notice
Record Notice

Rights in real property - Implied