Real property is property that is fixed in nature, and includes land and buildings. Types of buildings include commercial, public, and residential (i.e., houses).

Under real property law, a person who owns land that has been historically referred to as a “bundle of rights” that come with owning that land. This bundle of rights (incidents of ownership), includes the rights to sell, lease, exclusively possess, encumber (e.g., mortgage), and dispose of by a will or other legal instrument. 

What is Trespass?

The right to exclude others from real property is known as the right against trespassing. Trespassing is an unauthorized (i.e., without the landowner’s consent) entry onto one’s private property, and interferes with the landowner’s right to “exclusively possess” their land. Trespass can lead to various legal consequences, including criminal consequences or violations.

What is an Easement?

An easement is a real property right a landowner gives to another. The right that is given is the right to trespass upon or use the landowner’s land. Through giving of this right, the real property owner is encumbering the property, or limiting their ability to use it as they see fit.

There are generally three types of easements. These include:

  1. Easements in gross: An easement in gross a legal right to use another person's land for as long as the owner owns that land, or the holder of the easement dies. An example of an easement in gross is an easement granted to a utility company, so the utility company can have access to utility lines that are on a landowner’s property;
  2. Prescriptive easements: Prescriptive easements do not arise from obtaining specific permission from the landowner. Rather, prescriptive easements are created when someone uses part of a landowner’s property without the landowner’s permission. An easement by prescription may be obtained if the legal elements of adverse possession are met. Adverse possession is created by the open, notorious, uninterrupted, hostile, and adverse use of another's land for a period of time set by state law. If the elements of adverse possession are met, the adverse possessor obtains a vested property right in the area that is adversely possessed. This person may then bring what is known as a “quiet title” proceeding, the goal of which is to obtain a court declaration that the person has legal title to the property that is adversely possessed; and
  3. Easements appurtenant: A typical easement appurtenant involves two parcels of land, and two adjoining landowners. The property that is burdened by the easement is referred to as the servient tenement, while the property that benefits from the easement is referred to as the dominant tenement. Easements appurtenant may “run with the land”; that is, they may remain in effect even if the original property owners change.  

What is an Easement by Necessity?

A common type of easement appurtenant is an easement by necessity. This type of easement is created by law. That is, the easement is created not by a specific promise or agreement between neighbors, but because the law implies its existence to achieve just results.

Picture a scenario in which two parcels of land (each owned by a landowner) adjoin each other such that one parcel of land is landlocked. That is, it cannot be accessed except by traveling over the other property. Under such circumstances, the law creates an easement by necessity. This in effect is an easement placed upon the non-landlocked parcel (the servient tenement). It  allows the landlocked owner access to their own property (the dominant tenement).

What are the Elements of an Easement by Necessity?

Courts will recognize an easement by necessity when the following facts exist:
  • At one time, both parcels of land were either joined together or were owned by the same owner;
  • Subsequently, the property became divided (e.g., the property owner sold a portion of the land). Different individuals obtained ownership of different parcels. Through the division, one parcels was created that was accidentally landlocked; and 
  • The person whose land is landlocked can only reasonably and practicably access their property by going through the other person’s property.

Can an Easement by Necessity be Terminated?

The law does not favor the involuntary placement of encumbrances on private property for any longer than is needed. Therefore, an easement by necessity can be terminated when the necessity for crossing an owner’s land is no longer present. The necessity may no longer exist when, for example, a new road or path that services the previously landlocked tenement is created.

Should I Seek Legal Counsel Regarding an Easement by Necessity?

An experienced real estate lawyer can advise you as to how easements by necessity are created and terminated. If an easement by necessity burdens your land, or, conversely, if an easement by necessity is necessary to avoid being “landlocked,” an attorney can assist you. They can help by analyzing the facts of your case, presenting you with options as to how to proceed, and by representing you in legal proceedings.