What is an easement by necessity?

Understanding Easements by Necessity: Your Guide to Landlocked Property Rights

Imagine you buy a beautiful piece of land in the countryside, only to discover that the only way to reach your property is by crossing your neighbor’s land. What now? Do you need their permission every time you come and go? This is where an easement by necessity comes into play.

An easement by necessity is a legal right that allows a property owner access through another person’s land when no other reasonable alternative exists. This type of easement ensures that landlocked property owners can access public roads or utilities, even if their neighbors would prefer otherwise. But how does it work, and what are the legal implications? Let’s break it down.

What Is an Easement by Necessity?

An easement by necessity is a legal right granted when a property is completely landlocked, meaning it has no direct access to public roads. The law recognizes that landowners must have a reasonable way to enter and exit their property, so courts can impose an easement on an adjacent property to allow access.

Key Characteristics of an Easement by Necessity:

• Created only when necessary—not for convenience.
• Typically involves access to a roadway or utility lines.
• Usually permanent unless conditions change (e.g., a new access road is built).
• Can be established by court order if the parties cannot agree.

How Is an Easement by Necessity Created?

Unlike other types of easements, an easement by necessity is not explicitly granted by a property owner but is implied by law. Here’s how it typically arises:

1. The Original Land Was Once a Single Parcel

For an easement by necessity to exist, the two pieces of land must have originally been part of the same property. This is known as the unity of title principle.

For example, if a large piece of land is divided into multiple lots and one of those lots is left without direct access to a road, an easement by necessity may be required.

2. The Property Became Landlocked After a Sale or Division

The easement must result from the division of land by a common owner. If a seller divides land and fails to provide reasonable access to one of the parcels, the law may step in to grant an easement by necessity.

3. No Other Reasonable Access Exists

If the landlocked owner has an alternative way to access their property—such as an existing road, public easement, or another means of entry—the court may not grant an easement by necessity.

How to Establish an Easement by Necessity

If you own a landlocked property and need an easement, follow these steps:

1. Try to Negotiate with the Neighbor

The easiest and least expensive approach is to talk to the adjacent property owner and request a written easement agreement. Some neighbors may be willing to grant access without involving the courts.

2. Check Your Property Deeds and Local Laws

Look at your property’s deed and title records. There may already be an implied easement that wasn’t explicitly stated. Also, research local property laws, as easement rules vary by state.

3. File a Legal Claim in Court

If negotiations fail, you can file a legal claim for an easement by necessity in court. The judge will review whether:

• The properties were once part of a single parcel.
• The division of land caused the lack of access.
• No other reasonable access exists.

If the court determines that an easement is necessary, they will issue a ruling requiring the neighboring property owner to grant access.

4. Record the Easement with the County

Once an easement is granted, it should be recorded with the local county recorder’s office. This ensures that future property buyers are aware of the easement.

Rights and Responsibilities of Both Parties

Landlocked Property Owner (Easement Holder):

• Has the right to reasonable access.
• May be responsible for maintaining the access road or path.
• Cannot expand the easement beyond its intended use.

Neighboring Property Owner (Servient Estate):

• Must allow the easement holder to use the designated access point.
• Cannot unreasonably block or obstruct the easement.
• Still retains ownership of the land being used for access.

Common Legal Disputes Over Easements by Necessity

Easements by necessity often lead to disputes between property owners. Here are some common issues:

1. Disagreement Over the Easement’s Location

The property owner granting the easement may prefer one access point, while the landlocked owner may prefer another. Courts typically decide on the most reasonable access route.

2. Property Owner Blocking Access

If the servient estate owner tries to block or obstruct the easement (e.g., by building a fence or gate), the easement holder may take legal action to restore access.

3. Expanding the Easement’s Use

An easement by necessity is limited to its intended purpose. If an easement was granted for a driveway, it cannot later be used for a commercial roadway without legal approval.

FAQs About Easements by Necessity

1. Can an easement by necessity be revoked?

Yes, but only if the necessity no longer exists. For example, if a new public road is built that provides direct access, the easement may no longer be needed.

2. Does an easement by necessity transfer to new owners?

Yes. Easements by necessity are attached to the land, not the individual owner, meaning they transfer when the property is sold.

3. Can a property owner charge money for an easement by necessity?

No. Because the easement is created out of legal necessity, the servient property owner cannot charge a fee for access. However, maintenance costs may be shared.

4. What if my neighbor refuses to recognize the easement?

If a neighbor refuses to allow access, you may need to take legal action to have the easement enforced by a court.

5. How long does it take to establish an easement by necessity?

If the process requires a court ruling, it can take several months to a year, depending on the complexity of the case and local laws.

Final Thoughts: Protecting Your Property Rights

An easement by necessity ensures that landlocked property owners have fair access to their land, even when neighboring property owners are reluctant. While legal disputes can arise, understanding your rights and taking the right steps—such as negotiating, researching deeds, and seeking legal help—can help resolve access issues efficiently.

If you’re dealing with an easement dispute, consider consulting a real estate attorney to ensure your rights are protected and avoid costly legal battles.