Easement by Necessity Lawyers

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What is an Easement by Necessity?

An easement by necessity allows an owner of a landlocked parcel to cross over another's land in order to access a public road.  Easements by necessity are know as appurtenant, which means that they benefit a particular piece of land, rather than an individual person.  Because they benefit the land, they run with the land.  Running with the land means that the easements pass with the title to the land.

How are Easements by Necessity Created?

An easement by necessity can only be created when land held by a single owner is severed into two or more parcels.  After severance, if any of the newly created parcels is physically unable to reach a public road, an easement by necessity may be created.  Easements by necessity are either granted to a buyer of a landlocked parcel, or reserved by a seller of land who retains a landlocked parcel after the severance and sale.

When a landowner sells an inner portion of their land and retains the rest, an easement by necessity is created by an implied grant.  The implied grant does not need to be contained in the deed conveying the property.  The common law will impliedly grant the easement to the landlocked parcel. 

Alternatively, when a seller of land retains a landlocked parcel for himself/herself, an easement by necessity may or may not be created.  In most states, a reservation of the right may be implied.  However, in some states, the reservation by the seller must be expressly stated.  For example, California courts imply a reservation of an easement by necessity while Georgia requires an easement by necessity to be expressly reserved.

How Necessary Must the Easement Be?

In all states, an easement by necessity will not be granted for convenience purposes.  Some real necessity must exist.  However, the degree of necessity varies from state to state.  

In the majority of states, strict necessity is required.  Strict necessity requires a totally land locked parcel.  Bordering a public road, even on a steep cliff or along a river, would prevent a parcel of land from being granted an easement by necessity under strict necessity.

In others states, such as Tennessee, only reasonable necessity is needed.  Under reasonable necessity, an easement by necessity will be granted if there is no reasonable way to access a public road.

How is an Easement By Necessity Terminated?

An easement by necessity is terminated when the necessity no longer exists.  This occurs when other access becomes available.  For example, a new road may be built that reaches the previously landlocked parcel.

Do I Need a Lawyer for my Easement By Necessity Problem?

Easements by necessity are complex and difficult to understand.  An experienced real-estate lawyer would be able to help you determine if an easement by necessity affects your land.  Your attorney would also be useful in creating and enforcing easements by necessity. 

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Last Modified: 11-13-2013 11:13 AM PST

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