What is an Easement by Necessity?
A parcel of land that has no direct access to a public road or public land is considered landlocked. When the only way to get to a public road is over adjacent property, that entry and exit is defined in an easement by necessity. This type of agreement typically occurs when a piece of property is divided and sold. It can appear as a granted or a reserved easement.
Generally, a landowner may sell a landlocked portion of his or her land. In this transaction, the buyer is granted an easement by necessity. The landowner grants an easement to the new owner to use the property to access the landlocked parcel. A granted easement allows for a specific use, but the original landowner still retains ownership of the land.
If the landowner divides the land and keeps a landlocked parcel, he or she creates a reserved easement by necessity. This easement permits the landowner access to the public road by traveling over the land he or she sold. He or she no longer owns the land, but has reserved use of a portion of the land.
Both easements stay with the property and not the original owner. It is vitally important to document the easement as part of the original transaction. The dominant tenement is the landlocked parcel that benefits from the easement.
If the parcel is sold, the easement by necessity is continued to the new owner. The property that physically provides the easement is the Servient tenement. If this property is sold, the easement stays in force and the new owner is obligated to honor it.
Generally, if more than an ordinary entry and exit to the landlocked property is desired, then a license is required. This allows for a specified use beyond the necessity and must be agreed to by the landowner. For example, the owner of the landlocked parcel cannot assume that he can start a business that would generate additional traffic across the easement. A license is between the individuals for an identified purpose and a specific time; it is not tied to the land. A license be as straightforward as a verbal agreement to allow parking on the easement on Sundays or as complex as business vehicles to use the road during weekdays.
An easement by necessity is terminated if the necessity no longer exists. This could be due to a new road being built or the purchase of a piece of property that no longer leaves the parcel landlocked. Once the necessity is gone, so is the easement.
@Logicfest -- well, they get expensive in some circumstances. For example, if the land is located outside of the city limits then it is usually up to the county judge to decide if an easement by necessity exists. The person asking for that determination can usually file with the county court for free or for a very low cost and the judge will decide the case. That decision can be appealed.
Of course, if the land is located within the city limits, then circuit courts are where those issues are decided and that is where lawyers and legal expenses come into play.
A good rule of thumb is to check on access before a parcel of land is purchased. If there is no access, make sure an easement by necessity is clearly defined in the sale.
A problem with an easement by necessity is that it is supposed to be created under certain conditions, but what if the owner of the servient tenement does not allow for an easement by necessity?
That's when the courts come into play and things can get expensive.
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