Key Takeaways

1. Easement by necessity is a court-created legal right allowing access to landlocked property when no reasonable alternative exists, ensuring the property can be used as intended.
2. This type of easement arises from the necessity of access, not from an express agreement or long-term use, and is only granted when strict legal requirements are met.
3. Understanding the distinction between easement by necessity and other types of easements is crucial for property owners and legal professionals involved in land transactions or disputes.

Understanding Easement by Necessity

What is an Easement by Necessity?

An easement by necessity is a special type of easement recognized in property law, created not by written agreement but by operation of law. It grants a property owner the right to cross another’s land to access their own property when no other reasonable access exists. Typically, this arises when a parcel of land becomes landlocked—meaning it has no direct access to a public road or utility—due to the way the land was divided or transferred. The law recognizes that property should not be rendered useless merely because of its location, and thus, an easement by necessity ensures that every parcel remains accessible and functional.

According to the Wex Legal Dictionary, an easement by necessity requires more than mere convenience. The necessity must be reasonable and absolute, meaning there is no other practical way to access the property. This principle reflects a balance between the rights of the servient estate (the land over which the easement passes) and the dominant estate (the land benefiting from the easement).

Legal Foundation and Historical Context

The doctrine of easement by necessity has deep roots in common law, developed to prevent parcels of land from becoming unusable after a division or conveyance. When a larger tract is split and one of the resulting parcels is left without access to a public way, courts may imply an easement across the remaining land. This is not a favor to the landlocked owner, but a recognition of the presumed intent of the parties at the time of the land division.

The necessity for access must exist at the time the property is severed, as highlighted in the University of Maine’s guide. If alternative access becomes available later, the easement by necessity may terminate, as its purpose is solely to remedy the lack of access.

Requirements for Establishing an Easement by Necessity

Elements of Easement by Necessity

Courts generally require the following elements to establish an easement by necessity:

1. Unity of Ownership: The dominant and servient estates must have been held by a single owner before the severance. This ensures the necessity arose from the division of the common property.
2. Necessity at the Time of Severance: The necessity for access must have existed when the property was divided. If the land was accessible at the time of severance, no easement by necessity will be implied.
3. Strict Necessity: The necessity must be more than mere inconvenience; there must be no other reasonable or legal way to access the land. As Real Estate License Wizard notes, "strict necessity" is the key standard.
4. Continuous Necessity: The need for the easement must continue; if a new access route becomes available, the easement may be extinguished.

The Legal Process

Obtaining an easement by necessity usually requires filing a lawsuit or petition with a court. The property owner seeking the easement must present evidence demonstrating that their parcel is landlocked and that the requirements above are met. The court will then evaluate the facts and, if justified, order the creation of the easement.

As explained by DDSNJ Law, the determination of whether a property owner is entitled to an easement by necessity is a legal question, typically decided by a judge. The process may involve surveys, property records, and testimony regarding the historical use and access of the land.

Easement by Necessity vs. Other Types of Easements

Easement by Prescription

An easement by prescription arises when someone uses another’s land openly, continuously, and without permission for a statutory period (often 10-20 years, depending on the jurisdiction). Unlike an easement by necessity, which is based on access needs at the time of severance, a prescriptive easement is based on long-term use.

T-MLaw provides a clear distinction: easement by necessity is granted due to the practical need for access, while prescriptive easement is earned through adverse use.

Implied Easement

An implied easement is similar to an easement by necessity in that it is not created by express agreement but inferred by law. However, implied easements can arise from prior use (also called easement by implication), where a use was apparent and necessary at the time of severance but not necessarily absolutely necessary.

As discussed on Reddit, the distinction is that implied easements can exist for uses that are "reasonably necessary," while easements by necessity require "strict necessity."

Appurtenant vs. In Gross

Most easements by necessity are appurtenant, meaning they are attached to the land itself and benefit the owner of the landlocked parcel (the dominant estate). As LegalMatch explains, this classification ensures the easement remains with the property even if ownership changes, making it enforceable by future owners.

Practical Considerations

When Does an Easement by Necessity Arise?

The most common scenario for an easement by necessity is when a landowner sells a portion of their property, and the sold parcel is left without access to a road or utility. For example, if a farm is divided and the back half is sold, but has no road frontage, the new owner may need to cross the remaining land to reach the public road.

How Long Does the Easement Last?

An easement by necessity typically lasts only as long as the necessity exists. If a public road is built or another legal access point is established, the easement may be terminated. Courts are careful to limit the scope and duration of these easements to what is strictly required.

Costs and Legal Fees

According to the "People Also Ask" section, the cost to establish an easement by necessity can range from $100 to $5,000 or more, depending on the complexity of the case, legal fees, and whether the matter is contested. The process may involve title searches, surveys, court filings, and legal representation.

Impact on Property Value and Use

An easement by necessity can affect both the dominant and servient estates. The landlocked property gains access and potentially increases in value, while the servient estate may experience a reduction in privacy or use. However, the easement is typically limited to what is strictly necessary for access and cannot be expanded for convenience.

Legal Authority and Official Resources

For more in-depth legal information and state-specific requirements, consult these official sources:

• Wex Legal Dictionary: Implied Easement by Necessity
• University of Maine: Easement by Necessity Guide (PDF)
• Real Estate License Wizard: Easement by Necessity
• DDSNJ Law: Understanding Easements by Necessity
• LegalMatch: Easement by Necessity

Conclusion

Easement by necessity is a vital legal doctrine that prevents land from being rendered inaccessible due to the way it was divided or transferred. It is a court-imposed solution, available only when strict legal requirements are met, and is designed to balance the interests of neighboring landowners. Understanding the legal framework and practical implications of easements by necessity is essential for anyone involved in real estate transactions, land development, or property disputes.

For attorneys and legal professionals seeking deeper insights, comprehensive legal research tools like Counsel Stack can provide up-to-date case law, statutes, and expert commentary on easements and other property law topics.

Disclaimer: This guide provides a general overview of easement by necessity and is not a substitute for legal advice. Laws and procedures vary by jurisdiction, and specific cases may involve additional nuances. Consult a qualified attorney or official sources for advice regarding your particular situation.