Can you use a path that’s been in your family for generations?

Sometimes when family property is divided, family members don’t record express easements to driveways, roads, and paths. This is understandable. Your family has always used the same path to get to the lake. Even though the property is newly divided, no one in your family is going to object to using the property how it’s always been used.

But what happens decades later after portions of the original property have been sold to non-family members? Some family members find themselves unable to use the same path to the lake that they’ve always used.

Is there anything a family member can do in a situation like that? Perhaps.

Under Tennessee law, there is what’s called an “implied easement.” An implied easement requires that (1) There was once a single tract of land; (2) Before the land was separated, the use that gives rise to the easement was so long continued and obvious as to show that it was meant to be permanent; and (3) The easement is essential to the beneficial enjoyment of the land. Johnson v. Headrick, 237 S.W.2d 567, 570 (Tenn. Ct. App. 1948).

While this sounds daunting, it’s not as bad as it sounds. Often, families meet the first two elements rather easily. As far as the third element is concerned, Tennessee doesn’t require that the use be strictly essential. Rather, Tennessee just requires that the use be necessary enough to be “within the contemplation of the parties.” Id.

If someone is keeping you from using property that your family has always used, don’t give up. Even if you don’t have an express easement, contact an attorney.

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