Deeded vs implied easement: what is the difference?
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.
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.
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.
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.
| Element | Easement implied from prior use | Easement by necessity |
|---|---|---|
| Common origin | Both tracts came from a common grantor | Both estates derived from a common title, meaning they once belonged to the same person |
| Timing | The use was in existence at the time of the severance | The dominant estate became landlocked at the severance |
| The use or the need | The use is apparent, continuous and reasonably necessary for the enjoyment of the dominant tract | The easement is reasonably necessary to the enjoyment of the dominant estate, with no ingress and egress except over the servient estate |
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.
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.
| Question | Deeded easement | Implied easement |
|---|---|---|
| Where it comes from | An express grant or reservation in a written instrument | The law, from the facts of a common owner's split |
| When it begins | When the instrument conveys it | At the severance of the common title |
| Where to look for it | The land records, through a title search | In no deed book; in the history of the tracts and the use |
| Who has to prove it | The recorded instrument is the evidence, read by an attorney | The party claiming it bears the burden of proving it |
| Where it runs on the ground | Described, if at all, in the instrument; located on the ground by a land surveyor | Must 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.
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.
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.
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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.
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.
- Nelson v. Davis (2001) Supreme Court of Virginia
- Palmer v. R. A. Yancey Lumber Corporation (2017) Supreme Court of Virginia
- City of Norfolk v. Pretty Lake 5757 LLC (not designated for publication) Court of Appeals of Virginia
- Morris v. Parker (not designated for publication) Court of Appeals of Virginia
- Va. Code 55.1-301 and 55.1-303, how a deed is construed and appurtenances included (Title 55.1, Chapter 3, Article 1) Virginia General Assembly
- Va. Code 55.1-407, recording and notice to purchasers Virginia General Assembly