Answers · Access, roads and easements

Deeded vs implied easement: what is the difference?

Short answer

The difference is where the right comes from. A deeded easement is granted or reserved in a written instrument, and once recorded a title search can find it. An implied easement arises by law at the moment one owner's tract is split, from a use already there or from land left landlocked, appears in no deed, and exists only if the claimant proves its elements.

Updated September 14, 2026 · Sources · General information, not legal, tax or lending advice
The day of the split

One tract becomes two, and two kinds of right can start that day

Go back to a single day: the day an owner sold off the back half of his land, or the day a will divided it. A deed was written that day. The law was also at work that day, whether the deed said anything about a road or not.

A deeded easement is the express kind, granted or reserved in writing. On the day of a split, the owner can grant a way to the buyer, or reserve one for himself, in the deed that divides the land. An implied easement arises by implication instead, and among implied easements Virginia recognizes an easement by necessity and an easement by pre-existing use.

An implied easement looks back to that moment. The Supreme Court of Virginia has said an implied easement of necessity must arise at the same time as the severance of the unity of title. In Palmer v. R. A. Yancey Lumber Corporation, decided in 2017, both tracts traced to the common ownership of one man who died in 1828; his property was subdivided with the probate of his will, and the Yancey tract was left landlocked. The split that mattered was nearly two centuries old.

An easement by estoppel is a separate category, and whether one exists is a question for an attorney. Prescription is a different clock altogether, running from at least 20 years of use rather than from a split, and its elements are in what a prescriptive easement is.

Deeded

A deeded easement is on paper in the clerk's office

A deeded easement can be read. Its route, its purpose and any conditions are in words someone wrote down and recorded.

Recording matters to every later buyer, since Va. Code 55.1-407 makes a deed void as to purchasers for value without notice until it is recorded.

An easement that belongs to the land travels with it: an appurtenant easement runs with the tract it benefits, and a deed is read to carry it along unless the deed makes an exception.

Finding a deeded easement is the work of a title search through the deed books, and what an examiner does is defined in the title search glossary entry. Deed types, warranties and recording in full are in deeds explained.

Implied

Prior use and necessity, and the elements each one takes

An implied easement is written nowhere. It exists only if the facts at the time of the split match what the courts require.

The two implied easements Virginia recognizes, and what a claimant shows for each
ElementEasement implied from prior useEasement by necessity
Common originBoth tracts came from a common grantorBoth estates derived from a common title, meaning they once belonged to the same person
TimingThe use was in existence at the time of the severanceThe dominant estate became landlocked at the severance
The use or the needThe use is apparent, continuous and reasonably necessary for the enjoyment of the dominant tractThe easement is reasonably necessary to the enjoyment of the dominant estate, with no ingress and egress except over the servient estate
Prior use: the test as quoted by the Court of Appeals of Virginia in an opinion not designated for publication. Necessity: Palmer v. R. A. Yancey Lumber Corporation, Supreme Court of Virginia, 2017.

The word necessity is gentler than it sounds. The Court has long held it is "not a physical or absolute necessity but a reasonable and practicable necessity." But the necessity element still turns on land that was left landlocked when the split happened, with no way in except across the other tract.

Side by side

Found in a records search, or proven by the person who claims it

Set the two side by side and the practical difference is where the proof lives.

Deeded and implied easements compared
QuestionDeeded easementImplied easement
Where it comes fromAn express grant or reservation in a written instrumentThe law, from the facts of a common owner's split
When it beginsWhen the instrument conveys itAt the severance of the common title
Where to look for itThe land records, through a title searchIn no deed book; in the history of the tracts and the use
Who has to prove itThe recorded instrument is the evidence, read by an attorneyThe party claiming it bears the burden of proving it
Where it runs on the groundDescribed, if at all, in the instrument; located on the ground by a land surveyorMust be proven too; a claim has failed for want of that proof

That last row is not a technicality. In one Court of Appeals of Virginia case, decided in an opinion not designated for publication, the claimants of an implied easement failed to prove a key threshold fact, the physical location of the easement they claimed. A right that is not written down still has to be put somewhere on the land.

Before anyone relies on one

An attorney tests the elements, and a surveyor finds the ground

A buyer, a lender and a seller all read a deeded easement the same way, from the record. An implied one asks each of them to accept a legal conclusion no record states.

When a title search comes back without the easement a parcel seems to depend on, the owner's next steps are covered in what to do when land has no recorded easement. The whole family of rights, from creation to relocation and enforcement, is laid out in easements explained, and the one-line definition is in the easement glossary entry.

Get started

A claimed implied easement or easement by necessity on the land?

Send the county and tax map number, and Lowell will pull the recorded deeds and plats for the parcel before anyone prices land that depends on an unwritten way, and say plainly which parts only a court can settle. No cost, no obligation.

Office107 Raintree Road, Hillsville, VA 24343
Goes straight to Lowell Bowman.

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Questions

Questions this raises

How strict is the necessity in an easement by necessity?

The Supreme Court of Virginia has long held that the necessity is not a physical or absolute necessity but a reasonable and practicable necessity. That standard sits beside the other elements rather than replacing them: the claimant still shows the estates came from a common title and that the dominant estate became landlocked at the severance, with no means of ingress and egress other than over the servient estate. Whether a parcel meets them is an attorney's question and, finally, a court's.

Can an easement by necessity be made wider than the old road?

It can. In Palmer v. R. A. Yancey Lumber Corporation in 2017, the Supreme Court of Virginia held that under the reasonable necessity rule the width of an existing easement by necessity may be expanded without the servient landowner's consent. The same opinion says modifications for the benefit of the dominant estate must not create unreasonable burdens on the servient estate. Whether a particular widening meets that test is a court's decision.

Can an implied easement trace back to a split made generations ago?

The elements look to the moment of severance, and Palmer v. R. A. Yancey Lumber Corporation shows how old that moment can be. In that case both tracts derived from the common ownership of one man who died in 1828, and his property was subdivided with the probate of his will, leaving the Yancey tract landlocked. Proving facts that old is its own burden, and an attorney weighs the evidence.

Sources

Where this page's facts come from

Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.