Easement by Necessity: Appurtenant Easement and Definition

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What are Real Property Rights?

Real property is defined as property that is fixed in nature, including land or buildings. It also includes anything growing on, affixed to, or built upon the land. This may be a man-made building or a crop. It is property that does not move or is attached to the land. This is different from personal property, which may be moved or transferred physically.

Real property is also known as real estate or premises. It may also include anything that is permanently located within or under the land. This can include oils, gasses, or minerals found beneath the land.

Under real property laws, the individual who owns the land has what is often referred to as a bundle of rights associated with owning that land. This bundle of rights, also known as incidents of ownership, includes the rights to do the following with the land:

  • Sell;
  • Lease;
  • Exclusively possess;
  • Encumber, or mortgage; or
  • Dispose of by a will or other legal instrument.

What is Trespass?

A trespass occurs when an individual unlawfully enters the property of another without permission or proper authority. The right against trespassing includes the right to exclude other individuals from real property. The legal elements of trespass include when an individual:

  • Enters private property;
  • Without authorization, or the landowner’s consent; and
  • Interferes with the landowner’s right to exclusively possess their property.

A trespass charge can lead to various legal consequences, including civil and criminal liability. A civil trespass includes similar elements to criminal trespass, but with some distinctions. When an individual improperly enters another’s property, that is trespass. In addition, causing another individual to enter someone’s property can also be trespass.

Trespass in a civil lawsuit can include situations when an individual runs through a yard without permission or hits a baseball through a window. The goal of a civil suit is to collect a monetary amount for the damage caused to the property. Many states require that the individual filing the lawsuit, or the plaintiff, prove actual damages were caused to their property, although proving that the harm was intended is not required.

In order to prove criminal trespass, the prosecution must show that the defendant, or the accused:

  • Unlawfully entered or remained on another individual’s property without permission; and
  • Was aware that they did not have the owner’s permission to be on the property.

Intent is an essential element in a criminal trespass charge because accidental entry generally does not qualify as criminal trespass. This is the reason signs reading private property or no trespassing may be important evidence in proving the defendant’s guilt.

An individual can also be guilty of a trespass if they remain in a place they are specifically no longer allowed. In these cases, even though the entry may have been permissible, there can be a point at which that permission is withdrawn and an individual may be arrested or charged with trespass. For example, if an individual is at a retail store and is asked to leave but does not, they may be charged with trespass.

What is an Easement?

An easement definition includes a legal right to use another’s real property for a specific purpose or a specific amount of time. An easement provides an individual with a legal right to pass through another individual’s land, so long as that usage is consistent with any specific easement restrictions. The landowner retains title to the property even though an easement grants another individual a possessory interest in the land or part of the land for a specific purpose.

An easement may be given to any individual, including:

  • Neighbors;
  • Government agencies; or
  • Private parties.

An example of an easement would include a situation where a property owner allows usage of their private road or path for a neighbor’s navigation. Common examples of easements include easements for:

  • Public utilities;
  • Power lines; or
  • Cable television, although often underground.

Easements are associated with real property and are, therefore, governed by real property law. In general, there are 3 types of easements, including:

  • An easement in gross;
  • A prescriptive easement; and
  • An easement appurtenant.

What is an Easement in Gross?

An easement in gross is a legal right to use another individual’s land for as long as the owner possesses that land, or the holder of the easement passes away. An example of this type of easement includes an easement granted to a utility company so that company may access the utility lines on a landowner’s property.

What is a Prescriptive Easement?

A prescriptive easement does not arise from obtaining specific permission from a landowner. A prescriptive easement is created when an individual uses a portion of the landowner’s property without the landowner’s permission. A prescriptive easement may arise when all the legal elements of adverse possession are met.

Adverse possession occurs when an individual uses another individual’s land for the period of time set by state law in a manner that is:

  • Open;
  • Notorious;
  • Uninterrupted;
  • Hostile; and
  • Adverse.

If these elements are met, the adverse possessor may bring a quiet title proceeding. The goal of this proceeding is to obtain a declaration from the court that the individual has legal title to that property which is adversely possessed.

What is an Easement Appurtenant?

An easement appurtenant usually involves two adjoining landowners. The property that is burdened by the necessary easement is referred to as a servient tenement. The property that benefits from the necessary easement is known as the dominant tenement. An easement appurtenant may remain in effect, known as running with the land, even if the original property owner changes.

What is an Easement by Necessity?

An easement by necessity is a common type of easement appurtenant. An easement by necessity is created by law, meaning it is not created by a specific promise or agreement between neighbors, but the law implies its existence to achieve just results.

An easement by necessity example may include a scenario where two individuals own separate parcels of land that adjoin each other in such a way that one of the parcels is landlocked. In other words, that parcel cannot be accessed except by traveling through the other parcel. In these circumstances, the law creates an easement by necessity. This creates an easement placed upon the non-landlocked parcel, or servient tenement. It permits access to the property that is landlocked, or the dominant tenement.

What are the Elements of an Easement by Necessity?

Generally, a court will recognize an easement by necessity if the following essential elements of easements are met:

  • At some time, both parcels of land were joined together or were owned by the same owner;
  • Subsequently, the property was divided, and the property owner sold a portion of the land;
  • Different individuals obtained ownership of different parcels;
  • Because of the division, one parcel was created that was accidentally landlocked; and
  • The individual whose land is landlocked can only reasonably and practicably access their property by going through the other individual’s property.

Can an Easement by Necessity be Terminated?

Generally, that law does not favor an involuntary placement of an encumbrance on an individual’s private property for longer than necessary. Because of this, an easement by necessity may be terminated when the necessity for crossing an individual’s land no longer exists.

This necessity may cease to exist when certain situations occur, such as a new road or path is built that creates access to the previously landlocked parcel.

Should I Seek Legal Counsel Regarding an Easement by Necessity?

Yes, if you are involved in an easement by necessity situation, it is important to seek help from an experienced property lawyer. A lawyer can review your case whether the easement burdens your land or if an easement by necessity needs to be created in order to access your land. They can advise you on the best path forward and represent you during any legal proceedings, if necessary.

Save Time and Money - Speak With a Lawyer Right Away

  • Buy one 30-minute consultation call or subscribe for unlimited calls
  • Subscription includes access to unlimited consultation calls at a reduced price
  • Receive quick expert feedback or review your DIY legal documents
  • Have peace of mind without a long wait or industry standard retainer
  • Get the right guidance - Schedule a call with a lawyer today!

16 people have successfully posted their cases

Find a Lawyer