What Is an Implied Easement?
An implied easement is a property right to use another person’s land that arises by operation of law rather than through a written document. In Florida, implied easements are not recorded in the public records but are legally enforceable when specific conditions are met. They most commonly arise in the context of land access and historical use patterns.
Types of Implied Easements in Florida
- Implied by necessity: Created when a parcel is landlocked with no access to a public road without crossing adjacent property. The necessity must exist at the time the parcels are separated from common ownership.
- Implied by prior use: Created when a property was used in a particular way before being divided into separate parcels. The use must have been apparent, continuous, and reasonably necessary.
Elements Required Under Florida Law
Both types share a common threshold: the dominant and servient parcels must have been under common ownership before being separated by conveyance. Additional elements vary by type:
- Necessity: The easement must be necessary (not merely convenient) for beneficial use of the dominant parcel at the time of separation
- Prior use: The use must have been visible, continuous, and apparent to a reasonable buyer at the time of conveyance
Implied Easements vs. Express Easements
- Express easement: Created by written document, recorded in public records, clearly defines the easement location and terms
- Implied easement: Arises by operation of law, not recorded, terms determined by the court based on the circumstances
- Both are enforceable property interests under Florida law
Termination
Implied easements can end through: merger (common ownership of both parcels), express release, abandonment (requires intent plus nonuse), or court order. Easements by necessity end when the necessity ceases.
Related Terms
- Easement — General property use right
- Quiet Title — Action to resolve easement disputes
- Encumbrance — Burden on property title
- Deed — Instrument of conveyance
Barnes Walker Real Estate Services
Barnes Walker’s real estate attorneys handle implied easement disputes, quiet title actions, and access issues throughout Manatee and Sarasota counties. Request a legal inquiry for assistance.
Florida Law Reference
Fla. Stat. Ch. 704
Governs the creation, scope, and termination of easements in Florida, including easements by necessity and prescription.
Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC