Imply an Easement by Necessity - dummies

Imply an Easement by Necessity

By Alan R. Romero

Similar to an easement implied by prior use, in property law, an easement implied by necessity, or just easement by necessity, is created only when a landowner divides her land among two or more owners.

But an easement by necessity arises only when that division of land causes a newly divided parcel of land to no longer have access to a public street, regardless of whether some of the owner’s land had previously been used to access that portion before the division of the land.

A person claiming an easement by necessity must prove the following:

  • Severance of unity: One of the parties has divided her land and transferred part of it to the other party.

  • Loss of access: The division of the land caused the claimant’s land, whether the parcel retained by the grantor or the parcel granted to the grantee, to no longer have a legal right of access to a public street.

  • Necessity: At the time the property was severed, the claimant’s land didn’t border a public street or have any other existing easement over private land to get to a public street. This is the only kind of “necessity” for which one may have an easement by necessity.

    Some courts hold that an easement is necessary even though there may be some other route to a public street, because the other route isn’t feasible or effective.

These circumstances imply that the grantor must have intended to grant or reserve an easement to pass across the other part of the subdivided land to get to a public street.

But even if these conditions are met, some courts have held that the easement isn’t implied if the parties have otherwise indicated their intent not to create an easement — such as the grantee’s acknowledging in the purchase agreement that the land he’s buying doesn’t have access to a public street.

The owner of the servient land can specify the location of the easement by necessity over her land. But if she doesn’t do so within a reasonable time after severance, the dominant tenant can choose the access route over the servient land.

Unlike the easement implied by prior use, the easement by necessity lasts only as long as the necessity lasts. If the dominant tenant acquires an easement over some other land to access a public street, or if the government builds a public street over or adjacent to his land, the easement by necessity ends.

The easement by necessity doctrine is not a general rule that a person automatically has an easement over another person’s land if needed to get to a public street. The easement by necessity exists only over land that was divided — over either the grantor’s or the grantee’s land — and only when the division itself cut off access to a public street.

One never has an easement by necessity over someone else’s land that wasn’t part of the subdivided land. If someone buys land that didn’t have access to a public street in the first place, he simply must buy easements as needed to get an access route to a public street — or wait for the government to build a public street adjoining his property.

Some states have statutes that authorize private owners to forcibly buy an access easement from an unwilling owner. If a landowner doesn’t have access to a public street, he can petition the local government to identify an access route and determine a fair price that he must pay the owner of the servient land.