Easement by Implication as a Cause of Action in New York

An easement by implication allows one landowner to use a portion of a neighboring property based on how the land was previously used when both parcels were owned together. Unlike written agreements, this kind of easement arises from the circumstances surrounding the land’s use and separation. New York courts recognize this type of easement only when specific legal elements are met.

Unity and Subsequent Separation of Title

The first element is that both parcels of land were once owned by the same person or entity. This is called “unity of title.” At some point, the owner divided the property into two or more parts, transferring one or more portions to new owners. The easement claim arises from the relationship between these divided parcels. If the two parcels were never under common ownership, an easement by implication cannot exist.

Longstanding and Obvious Use That Appears Permanent

The second requirement focuses on the use of the property before the land was split. The claimed easement must have been used in a way that was continuous, visible, and so consistent that it appeared to be a permanent arrangement. For example, a path used for years to access a road or a driveway running across one part of the property may qualify. The key is that the use must have been obvious enough to put future owners on notice that the use was intended to continue.

Necessary for the Beneficial Enjoyment of the Retained Land

The third element requires that the easement is necessary—not merely convenient—for the reasonable use of the property that was kept by the original owner. Courts assess whether the claimed easement significantly impacts the retained parcel’s ability to be used as intended. If the land can still be used effectively without the easement, the claim is unlikely to succeed.

Conclusion

An easement by implication offers a legal remedy when property has been divided, and prior use of the land needs to continue for fairness and practicality. To win such a claim in New York, the person seeking the easement must prove that the parcels were once commonly owned, that the use was visible and seemed permanent before the split, and that the continued use is necessary for the property to function properly. When all three elements are clearly met, courts may recognize an implied easement, even without a written agreement.

Find the Law

“Three elements must be established to find an easement by implication: ‘(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary to the beneficial enjoyment of the land retained’ (Abbott vHerring, 97 A.D.2d 870, affd62 N.Y.2d 1028).” Kusmierz v. Baan, 144 A.D.2d 829, 830-31 (N.Y. App. Div. 1988).