Real Estate Terms

What is an Easement by Necessity?

What happens when a property owner subdivides his or her property and sells it to others, thus locking you out of your home or denying you access to the public street? Well, in a short: trouble. But, luckily theirs a legal solution to this problem and many others through the use of easements. This article will break down an easement by necessity and how it applies to property owners and real estate professionals.

What is an Easement by Necessity?

An easement by necessity is a type of easement that allows you to utilize a piece of land to get to another part of the land. It is a court-created easement, similar to an implied easement. Courts will only grant this form of easement if it is a necessity – or it is necessary for the use of the land.

An easement by necessity is appurtenant since it “runs with the land.” In other words, the easement’s rights are tied to the land itself, not to the landowner. When it comes to land rights, you’ll typically have a dominant tenement meaning the property that benefits from the easement rights. The servient tenement is the land that provides the easement rights to the other.

Various types of requirements lead to the development of an easement by necessity, including:

  • Right of way to access a public road
  • Right of access for maintenance
  • Right for proper drainage
  • Right to receive light

Its worth mentioning, by implication, an easement can be created if the land is subdivided, sold, or transferred to a different property owner, leaving the owner of adjoining land unable to use, have beneficial enjoyment, or access their property.

How are Easements by Necessity Made?

Easements by necessity are made when a property is landlocked. When a property owner’s land or property is entirely inaccessible (or landlocked) and can only be reached by passing through a neighbor’s land or property, an easement in necessity can be granted. As discussed above, there are various requirements to establish this legal document for both the landlocked property owner and dominant estate.

The “necessity” is for the non-landlocked property (servient tenement) to offer the landlocked property rights of way (dominant tenement). The owner of the landlocked property must establish and justify the requirement for an easement by necessity following the subdivision of land through:

  • The severance of unity
  • The loss of access
  • The need for the use of the land

If all three requirements exist, an owner can be granted an easements by necessity.

Understanding Easements

It is essential to understand easements as a whole and how such easements relate to the necessities. An easement is a legal privilege that allows one person to utilize another’s land for a certain purpose, such as driving through their property. If you are interested in learning more about this specific topic, check out our previous article here.

An easement is a one-of-a-kind contract between the two parties concerned. As a result, easement agreements are written so that the property’s specific use is specified, and the property owner is granted the option to terminate the easement. Such contracts are occasionally transferred as part of a property sale, so potential buyers should be aware of any easements on the property under consideration.

An easement must be in writing according to the law. The easements are normally included on the deed; if you don’t own or buy the property yet, you can get a copy of the deed and the easements listed on it from county records. 

Easement agreements can be divided into three categories. The type of easement granted will be determined by the individual parties’ objectives. Implied easements, prescriptive easement, and appurtenant easements are all defined by property law. Some of these can be difficult to get terminated.

Because easements are created by law to allow a property to have access to the street or a property owner to have access to an owned property, they can last as long as the “necessity” exists.  If having such an easement on someone’s private property is no longer “necessary,” the easement will be terminated by necessity since it no longer meets the legal conditions to survive.

Example of Easement by Necessity

The most common example of an easement by necessity would be crossing through the land. Say Person A owns a home with an additional building that could be used for living. Person A sells that building and the adjoining parcel of their property to Person B. There is a private road that Person B must access, but due to the land layout and the trees, they must pass through Person A’s part of the property. Person A is upset that they must pass through their property, but it is necessary for Person B since there is no other access from the landlocked parcel. 

Since Person A is the dominant tenement, Person B expresses the necessity of passing through the other parcel to reach the private road. After dealing with some real estate attorneys, Person A and Person B agree to an easement by necessity, meaning Person B is allowed to cross through Person A’s property to access the road.

In essence, a scenario in which two individuals own different parcels of land adjacent to one of the parcels that are landlocked is an example of an easement by necessity. In other words, the only way to get to that parcel is to travel through the other parcel. By necessity, the law creates an easement in these situations. This generates a servient tenement easement over the non-landlocked tract. It allows access to the landlocked property or the dominant tenement.

According to the traditional viewpoint, strict necessity is required. The landlocked property’s owner must prove that the severance of title rendered the property landlocked, which means adjoining landowners must surround the property. The owner must not have legal access to their land, such as through an existing easement or license. 

It must show it necessitates a valid need. The easement must be reasonable since there is no other practical way to use the property without it; it must be more than just convenient. This viewpoint recognizes easements for roadways and utility lines, which the typical viewpoint overlooks. There will not be an implied easement by necessity if the grant of a landlocked parcel expressly says that the new owner will not have the right of way across the grantor’s property. 

Easements by Necessity in Practice

Two adjoining landowners are typically involved in some form of appurtenant easement. A servient tenement is a piece of property encumbered by a necessary easement. The dominating tenement is the property that benefits from the requisite easement. Even if the original property owner changes, an easement appurtenant may continue to be in effect, known as running with the land.

If you are curious to learn more about these types of tenements and their relationship, check out our article that breaks them down further.

How Do I Get an Easement by Necessity?

To have an easement by necessity, you must have a reason stating it is necessary to use the parcel of land from the landowner. Some laws exist in some jurisdictions that allow property owners to claim non-collaborative easements from neighbors, but this will rely on your local laws and the case facts.

A court-ordered easement of necessity only exists once the court has granted it. The easement is usually required because a property owner cannot access his/her land without crossing another parcel of land, i.e., his/her property is landlocked.

In such cases, an application for an easement must be presented to the court on the basis that it is required for the enjoyment of the land. A similar right might exist if a wall needs to be repaired but can only be reached by entering another property.

The court will decide whether to award the easement by inferring the original parties’ purpose, determining whether the dominant or servient tenement will suffer more damage or inconvenience, and issuing an order accordingly.

When the requirement for an easement of necessity is no longer present, such as when an access path is built or a legal easement is created by deed, the easement of necessity is immediately terminated.

If your situation applies to these criteria, you will likely get an easement by necessity. If you are unsure or need further clarification, contact legal help or attorneys to assist in your case.

What to Know for the Real Estate Exam

When it comes time for your real estate exam, you will need to know that courts will only grant an easement if necessary to use a piece of property. In addition to knowing the other variety of easements, you will need to understand that an easement by necessity is a sort of easement that allows you to utilize a piece of land to get to another part of the land. This type of easement is most common when a landowner must use their neighbors land to gain access to a public road. By keeping those main elements in mind, you will be set come exam day!

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