What is an easement by necessity? A comprehensive overview

In real estate, property law and ownership rights can make or break a transaction. Especially because easements can represent a type of encumbrance for a property. An easement can be defined as a non-possessory interest in land that gives the holder the right to use the land for a specific purpose. One such is an easement by necessity.

This type of easement can significantly influence property ownership, especially when dealing with landlocked parcels or unique property arrangements.

While the concept might seem complex at first, this guide breaks down everything you need to know in a simple and friendly way. You’ll learn an easement by necessity in real estate definition, how it’s created, the benefits and challenges involved, and why it’s so important for real estate professionals and exam-takers.

Easement by necessity definition

An easement by necessity is a type of access easement that legally allows a property owner to cross an adjoining piece of land to reach their property. It is called an “implied easement” because it is not explicitly documented but is assumed to exist to ensure fair use of the property.

This situation typically arises when a landlocked parcel is created, preventing direct access to a public road. This type of easement is unique because it is appurtenant, meaning it “runs with the land” and transfers with property ownership. 

Regarding land rights, you’ll typically have a dominant tenement (or easement holder), which means the property that benefits from the easement rights. The servient tenement is the land that provides the easement rights to the other.

Key purposes:

• Right of way: Provides access to public roads.
• Maintenance access: Ensures proper upkeep of the property.
• Drainage: Grants rights for necessary drainage routes.
• Light access: Allows access for sufficient light, where applicable.

How is an easement by necessity created?

Easements by necessity in real estate by definition are not automatic; court rulings often establish them. A landlocked property owner must demonstrate that access is only possible by crossing an adjacent property.

Legal requirements:

• Unity of ownership: The dominant (landlocked) and servient (adjoining) parcels of land must have once been part of the same estate before being separated.
• Strict necessity: The need for access must be essential. The court won’t grant an easement if an alternative route exists, even if it’s inconvenient.

Court process:

An easement is deemed justifiable or not, depending on the history and present state of the property, scrutinized by a judge. That way, it can well serve without encroaching upon the rights of the owner of servient property.

Key legal considerations

Understanding the legal framework around easement by necessity is crucial for real estate agents and exam students:

1. Established by court: Courts grant the easement when strict necessity is proven.
2. Reasonable use: The easement allows reasonable access without causing excessive burden to the servient estate.
3. Scope and limitations: The court defines the specific access rights, such as the path width and permitted use.
4. Maintenance and repair: The dominant estate typically bears the cost of maintaining the easement, while the servient estate must permit maintenance access.

When is an easement by necessity terminated?

Easements by necessity prevails as long as the necessity exists. It can end if:

• Alternative access: A new path or road is created that provides direct access to the dominant property.
• Legal easement documented: The easement is replaced by a formal, documented agreement or included in a property’s deed.
• Changes in land use: Significant changes in land use may lead to court reassessment and possible termination.

Real-life scenario

Imagine a large piece of rural land owned by the Smith family for generations. Over time, the family decides to sell part of the land to different buyers. One portion sold to a farmer named John, becomes landlocked after these sales, with no direct road access. John’s parcel is surrounded by properties owned by the Millers, the Lees, and a public nature reserve.

Since John has no way to access his property without crossing the Millers’ land, a strict necessity for an easement exists. The court evaluates the situation and establishes an implied easement by necessity, allowing John to gain access through a narrow access path across the Millers’ property.

John’s landlocked parcel becomes the dominant tenement (the property that benefits from the easement), while the Millers’ adjacent land, which provides access, becomes the servient tenement.

The court defines the easement‘s scope limiting it to a single gravel path. This path is wide enough for vehicles to pass. It ensures John has reasonable access. At the same time, it does not significantly burden the Millers’ land.

If John’s use of the path expands to accommodate commercial traffic, the Millers might feel that it exceeds the original scope, leading to potential disputes.

John is responsible for maintaining the path, including clearing debris after storms, while the Millers must allow him access for this purpose. 

If a new public road is constructed near John’s property, providing direct access, the easement may be terminated, as the necessity would no longer exist.

Differences between easement by necessity and other types of easements

It’s essential to understand easements by necessity how they differentiate from other types of easements.

Prescriptive easement:

Prescription is the acquisition of an easement over other people’s property due to continued, open, notorious, and hostile use.

• Gained over time: Established through continuous and open use without permission for a set period (e.g., 10-20 years, according to each state law).
• Hostile use: Does not require the consent of the servient estate.
• No prior common ownership required: Can be created between unrelated properties.

Express easements

Deeds and will create express easements by a written agreement between parties.

• Origin: Express easements have an express grant.
• Documentation: Easements by necessity do not necessarily require a written agreement but may have one once the court recognized them. These easements must appear in land records in a locality.
• Consent: An express easement always arises with the permission of the owner of the servient tenement. However, an easement by necessity may arise without the owner’s express consent in case the tenement becomes landlocked.

Summary

An easement by necessity is a critical tool for ensuring access to landlocked properties and is tied directly to the land as an appurtenant right. These easements benefit the dominant tenement by providing necessary access, while the servient tenement must accommodate the easement within reason. 

Legal considerations include court establishment, reasonable use, and the potential for disputes. If you remember those three most important factors, you’re good to go on exam day!

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