Implied Easement By Necessity

Overview

An easement that arises when a landowner conveys a landlocked parcel of land to another. Common law presumes that the grantee has right to pass over the retained property if such passage is necessary to reach the granted landlocked property. An easement by necessity may lie dormant through several transfers of title and still pass with each transfer as appurtenant to the dominant estate.

Elements

The elements needed to establish an implied easement by necessity are: (1) unity of ownership prior to separation, meaning both estates were once owned as a single unit or tract and (2) necessity for the easement at the time of severance. The traditional view requires strict necessity. Under strict necessity, the owner of the landlocked property must prove that the severance of title caused the property to be absolutely landlocked, meaning the property must be entirely surround by adjoining landowners and the owner must not have any legal way of reaching their land, such as though an existing easement or license. The minority view requires reasonable necessity. Reasonable necessity requires that there can be no other reasonable way of enjoying the property without the easement; it requires more than mere convenience. This view recognizes easements not just for roadways, but also for things like utility lines, which the traditional view does not recognize. However, if a grant of a landlocked property specifically states the new owner will not have a right of way across the grantor’s property, then there will not be an implied easement by necessity.

Policy

Implied easements by necessity can be seen as problematic because they divert from the statute of frauds. Because implied easements by necessity are not recorded, bona fide purchasers may not be aware that the land they are purchasing is burdened by an easement. Alternatively, implied easements by necessity can be seen as advantageous because they allow people to make use of their land. If the courts did not recognize these easements, then landlocked land property would not be able to be used because the owners could not reach it, or the owner of the landlocked property would have to negotiate with the adjoining property owner for an easement, which leaves the landlocked property owner vulnerable to extortion.

[Last updated in June of 2020 by the Wex Definitions Team]