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Can I claim an implied easement based on how a property was used before it was severed from a larger parcel?

TSL Written by the Treadstone Law team· Updated August 2026

Potentially, yes, through a doctrine related to but distinct from an easement of necessity, sometimes described as an implied easement from prior use, or a "quasi-easement." The idea is that if, before a larger parcel was divided, one part was used in a continuous and obvious way to benefit another part, such as a driveway crossing what's now a neighbour's lot, or a drainage pattern running across the boundary, courts may imply that the same right continues after the severance, even without it being written into the transfer documents.

For this to apply, the use generally needs to have been apparent, something a reasonable observer or surveyor would have noticed at the time, and reasonably necessary for the proper enjoyment of the part of the property that was severed off, not simply convenient or preferred. This is a fact-heavy inquiry: courts look closely at how the property was actually used before the split, what would have been visible to the parties involved in the severance, and whether the severed lot's reasonable use genuinely depended on that arrangement continuing.

Because implied easements depend so heavily on specific historical facts rather than a document you can simply point to, anyone relying on one should gather evidence of the prior use and get legal advice before assuming the right will be recognized.

Key takeaways

  • An implied easement from prior use can arise from how land was used before it was divided.
  • The prior use generally needs to have been apparent and reasonably necessary for the severed lot.
  • This is a fact-driven doctrine, distinct from but related to an easement of necessity.
  • Gather evidence of the historical use and get legal advice rather than assuming recognition automatically.
This is general information, not legal advice. It doesn’t create a lawyer–client relationship, and the rules can change. For advice on your situation, a Treadstone real estate lawyer can help.
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