Easements are a right given to another person or entity to trespass upon or use land owned by somebody else.

Easements can be granted to neighbors, government agencies, or any other non-property owner. Easements can also be acquired, even if not directly granted, by adverse possession.

What is an Easement by Necessity?

An easement by necessity is an easement that is granted when two parcels are situated such that the non-owner’s parcel of land is landlocked. In that regard, the easement allows the non-owner to pass over the owner’s land in order to gain access to a public road.

This type of easement requires that at one time, both parcels of land were either joined together or were owned by the same owner. An easement by necessity assumes that the property was landlocked by accident.

It's important to note that an easement by necessity does not give the user title to the land. Instead, it is simply a right to use property.

How are Easements by Necessity Created?

Easements by necessity are implied easements in that it need not be in writing and is lawful because of the particular circumstances. In other words, one party has no choice but to use a portion of the other party’s property in order to access their own property and to gain access to the right of way. They can be created in two ways. It can be awarded by the courts in the following situations:

  • When a person’s property is landlocked and the only way to gain access to a right of way is through another person’s land; and
  • It can be reserved by a seller of land who sells a parcel of land that is landlocked after the completion of the sale.

How Can an Easement by Necessity Be Terminated?

An easement by necessity can be terminated when the necessity for crossing an owner’s land no longer exists. For example, if a new road is created that reaches the previously landlocked parcel of land, the easement by necessity can be terminated.

In order to clear title, either the easement holder or the party who granted the easement should record the easement termination.

Should I Seek Legal Counsel Regarding an Easement by Necessity?

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