Rules of the Game: Implied Easements
Professional Surveyor Magazine - December 2011
Knud Hermansen, LS, PhD, PE, Esq. and A. Richard Vannozzi
| Part 2
| Part 4
Part 3: Quasi Easement
Readers are cautioned that they should investigate state cases dealing with the particular application of the law to determine how the law applies in their state. Many states have modified the common law that is presented here.
If a surveyor fails to identify implied easements and that failure results in damages to the client, the surveyor may be subject to liability.
The previous articles have introduced surveyors to two forms of implied easements that arrive by information found in the documents rather than express conveyance: 1) easements created by the description of a lot that references a subdivision plat and 2) easements created when the grantor’s road is a boundary.
Another form of implied easement is known as a quasi easement. A quasi easement is almost always appurtenant to property. In other words, once the easement is created, it attaches to one property and burdens other property, and it exists regardless of whether it is mentioned in deeds to the property or not.
Quasi easements are true easements, but they derive their name from the fact that, prior to the division that gave rise to their creation, all the uses existed even though no easement technically existed (or needed to exist) because all of the underlying titles were in common ownership.
A quasi easement will exist when there is:
- an existing use at the time of a division and grant,
- the use was apparent at the division and grant, and
- the use continued for the benefit (reasonable comfort and enjoyment) of a property after the division and conveyance.
The respective lots arising after the division will be burdened or benefited as the situation existed prior to the division, so long as the use is either known to exist or the situation is such to reveal its existence to anyone exercising ordinary care. Thus, a buried or concealed use will not pass as a quasi easement. To be recognized as an easement, such a use requires an express grant.
In the figure below, the owner decided to convey an existing “mother-in-law house” and lot (let’s hope after the mother in law passed away). Here, the grantee who purchased the mother-in-law house and lot would have a quasi easement for the driveway and a quasi easement for the utility line. The grantor may have a quasi easement for the septic field and driveway.
Some states require that the use forming the basis for the quasi easement be a necessary use, with strict necessity required when benefiting the grantor’s remaining land. Under the criteria of strict necessity, the grantor’s septic field may not qualify as a quasi easement because the septic field can be located at a different location. Therefore, an easement for the existing septic field is not strictly necessary.
The courts require a higher standard for the grantor to have a quasi easement because the grantor, exercising due diligence in the preparation of the deed, could have expressly stated what was intended to be reserved. In other words, why should the innocent grantee be burdened by a use that the grantor failed to expressly reserve in his or her own favor? In these cases, the courts have reasoned that the grantee should be subject only to a use not expressly reserved when the use is apparent and of such necessity that a reasonable person would have to know the use was meant to be reserved in favor of the grantor.
As seen from the example, certain easements—for a use that existed at the time of division and were continued after the division—give rise to an implied easement. The surveyor must not presume that every use not reflected as an express citation within the deed is an encroachment.
This becomes a critical consideration when the wording for notes and labels is chosen for ALTA/ACSM Land Title Surveys or when preparing plans for recordation or use in litigation. The mischaracterization of a use by a surveyor may inadvertently prejudice the position of a dominant or servient estate holder and create liability for the surveyor.
About the Authors
Knud Hermansen, LS, PhD, PE, Esq.Knud is a professor in the surveying engineering technology program at the University of Maine. He provides consulting services in the areas of boundary retracement, boundary litigation, roads, easements, property title, land development, and alternative dispute resolution.
A. Richard VannozziA. Richard Vannozzi is an assistant professor at the Thompson School of Applied Science at the University of New Hampshire. Richard has spent over 20 years in private practice where he focused on boundary, title and zoning dispute resolution and litigation before beginning his teaching career.
» Back to our December 2011 Issue