Under certain circumstances an easement can be implied where there is no written document creating one. For example, when property is landlocked an implied easement may exist. Creating an easement by implication is never easy; therefore, a real estate agent should never advertise that an easement may exist by implication.
One of the most common implied easements is the Easement by Necessity. In order to create an Easement by Necessity the benefiting property and burdened property must have at one time been part of the same tract under common ownership. The division of the property must have created the landlocked situation. The necessity for the easement must have existed at the time of division. Additionally, the person claiming the easement must not have created the issue. Lastly, the party claiming the easement must prove that the lack of the easement is more than an inconvenience. However, the party does not have to prove the easement is the only possible means of access.
For example, Dabo subdivides his tract of land and sells a portion of the land to William. When Dabo subdivided the property he inadvertently landlocked the property he sold to William. William can now make a claim of an easement across Dabo’s property to the road. However, without a written agreement between the parties creating and locating the easement, only the court can determine if and where the easement would be located. Neither William nor Dabo can determine where the easement should be placed.
Because the court must determine if and when the easement exists, a real estate agent should never advertise or assert that an implied easement by necessity exists. Despite what may seem reasonable to one of the parties, the court can wholly refuse to recognize the implied easement, determine it is unnecessary or may even place the easement at an entirely different place than the party intended.
Interesting South Carolina Fact: Sumter has the largest Gingko farm in the world.
For more information on easements. See, Treatise on the Law of Easements in South Carolina by Richard M. Unger.