Easements give a right to others to use a landowner’s property. An easement can be created in writing by agreement between the parties which is recorded with the county recorder. However, there are other easements that can be created when certain requirements are satisfied.
In Ohio, there are three types of these other easements:
- an easement implied by prior use,
- an easement implied by necessity, or
- a prescriptive easement.
Easements implied from prior use
If you’re seeking to establish an easement implied by prior use, there are four elements that you need to satisfy:
- A severance of the unity of ownership in an estate. Severance of the unity of ownership in an estate occurs when one owner sells only part of his whole property to another resulting in property that was once owned by one owner, now has part of it owned by another.
- Before the separation takes place, the use giving rise to the easement must have been so long continued and obvious that it appears that it was meant to be permanent.
- The easement is reasonably necessary to the beneficial use of the land granted or retained. For example, an easement for a road to a land-locked piece of property that had been in use for a long time would be reasonably necessary to continue using the land locked property.
- The use of the property that is the subject of the easement is continuous, rather than temporary or occasional use.
Easements implied by necessity
An easement implied by necessity requires proof that there is no other means to get to and from the property involved.
In Ohio, a prescriptive easement does not require a showing of necessity like the two implied easements described above. Instead, this type of easement requires that the use of the disputed property was:
- open (i.e., easily noticed by the owner of the property);
- notorious (i.e., exclusive);
- adverse (i.e., without permission); and
- continuous for twenty-one years.
A prescriptive easement cannot exist if the landowner gave permission to use the property in question because it isn’t adverse.
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