Generally, easements can only be created in writing or by prescription. However, under certain circumstances, the law implies that the parties intended to create or transfer an easement by a grant or reservation when there is no written document evidence their intent, and, in some cases, even when there is no oral agreement regarding the easement. This is called an implied easement.
As a general rule, an easement is implied only in those cases where: (a) there is a preexisting use of a portion of the property prior to the transfer; or (b) where the grantor leads the grantee to believe that the grantee will have an easement after the transfer, even though there is no prior use. Specifically, in order for a court to imply the creation of an easement on a division of title, the following conditions must exist at the time of conveyance:
(See Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141.)
Based on these requirements, implied easements are usually created when an owner that sells a portion of his property to another. Because the preexisting use is important in defining the nature of the easement, the implied easement arises out of the original owner’s use of his property. Unlike an easement by necessity, which I discuss in a later post, the” reasonably necessary” requirement does not require a strict necessity. Rather, the claimant merely has to show that the use is convenient for the use of the dominant tenement.
Nonetheless, the law does not favor implied easements because they deprive a property owner of exclusive use of his or her own property. (Horowitz v. Noble (1978) 79 Cal.App.3d 120, 131.) Accordingly, the person who claims an implied easement has the burden of proving each element of the cause of action by a preponderance of evidence. In other words, the person who is seeking to establish an implied easement must show that it is more likely than not that they satisfy the requirements.
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