What is the difference between an easement by implication and an easement by necessity?

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Question:

What is the difference between an easement by implication and an easement by necessity?

Answer:

An easement essentially allows you to use a property that you do not own.  In other words, it is an agreement between two parties that one may use the land that the other owns. The party who is receiving the benefit from the land is called the dominant party.  The landowner, who may be burdened because of the easement, is called the servient party. 

There are several different types of easements, including an easement by implication and an easement by necessity. The main difference between an easement by implication and an easement of necessity is the easement by implication requires proof that the parties intended to make the easement, even though that intent was not revealed, and an easement of necessity needs no proof of the parties’ intent. 

  • You can prove an easement by implication by showing that the use of the easement had been used for a very long time before the unity of title was severed and that the intent was for the easement to be permanent.  Proof is also needed that the use was continuous and that the use is highly beneficial to the dominant party. 
  • To prove an easement by necessity, you need to show there was unity of title before severance, that unity was severed, and there is a great need for the easement.  With this kind of easement, proof of intent of the two parties is not necessary.        

If you wish to create an easement, or if you need help proving that you have either an easement by implication or an easement by necessity, you should strongly consider speaking with a lawyer for advice. 

References:

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