Easement By Necessity (What Is It And Why It’s Important)

What is an easement by necessity?

How do you legally define it?

What are the important elements you should know!

Keep reading as we have gathered exactly the information that you need!

Let’s dig into our property law knowledge!

Are you ready?

Let’s get started!

Easement by necessity 

An easement by necessity is a type of easement granting the right to use a parcel of land to access another.

This type of easement is a type of easement that “runs with the land” falls under the category of easements appurtenant.

In other words, the rights associated with this easement are attached to the land and not the land owner (such as in cases of easements in gross).

When rights are associated with the land, you’ll typically have a dominant tenement (the land benefiting from the easement rights) and the servient tenement (the land providing the easement rights to the other).

The most common type of easement in necessity is when a property owner’s land or property is landlocked and can only be accessed by passing over a neighbor’s land or property. 

Another example is when the subdivision of land results in one of the parcels to no longer have access to the public street.

This creates an easement implied by necessity where one of the landowners will need to access an adjoining lot to access the street.

When do you have a necessity 

Typically, an easement by necessity is created by law as opposed to a mutual agreement or promise between neighbors.

There are different types of necessities leading to the creation of an easement by necessity, such as:

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

If land is subdivided, sold or transferred to different property owners leading the owner of an adjoining land unable to use, enjoy, or access their property can create an easement by implication.

Let’s look at an example.

What happens when the owner of a property subdivides his or her land, sells it to others and you are effectively locked out of your land or no longer have access to the public street?

When there is an event of land division resulting in a property owner being unable to use and access their property, an easement of necessity may be created by law.

In essence, the “necessity” is for the non-landlocked property (servient tenement) to give rights of way to the landlocked property (dominant tenement).

What do you need to prove?

To establish and prove the need for an easement by necessity following the subdivision of land, the owner of the landlocked property must establish:

  • The severance of unity
  • Loss of access
  • Necessity 

The severance of unity is when a landowner subdivides his or her land and sells it to others resulting in a property owner being locked out of his or her property or unable to access the public street.

Loss of access is the demonstration that there is no other way to access the land or public street unless it’s through access to an adjoining property.

Necessity is to demonstrate that the owner’s enjoyment of property is fully lost without creating the easement.

Easement by necessity elements 

What are the elements that you need to prove to establish the existence of necessity easement rights?

Most often, the “need” or “necessity” arises when land is subdivided and sold to different owners, 

This is a common situation when one property owner is effectively “locked out” of their property.

To prove the elements of easement in necessity, the landlocked property owner must establish:

  • The locked land was either joined or were owned by the same owner 
  • Following the land subdivision, a parcel of land was effectively landlocked
  • The owner of the landlocked property can only access the property by going through one of the divided lots
  • There are no other ways possible

Remember, this type of easement is required because it is necessary, not because it’s more convenient.

What happens when you buy land but the parties acknowledge that the property does not have access to the public street?

You must consult with a property law lawyer before acknowledging in your deed of purchase that the land does not have access to the street.

You should not make a purchase acknowledging that the land is already landlocked as you may get stuck with a land effectively landlocked!

In that case, it may be more difficult or perhaps no longer possible to benefit from an easement by necessity.

You may be required to privately purchase an easement from a neighbor or negotiate with the government to have them build access to the street somehow.

In some jurisdictions, there are laws allowing property owners to claim certain types of easements from neighbors that are not collaborative but this will depend on your domestic laws and the specifics of the case.

Termination of the easement by necessity 

Since easements by necessity are created by law to allow a property to have access to the street or property owner to have the ability to access an owned property, it can survive for so long as the “necessity” persists.

If it’s no longer “necessary” to have such an easement on someone’s private property, then the easement by necessity will be terminated as it will no longer meet the legal requirements to survive.

For example, a property owner buys an adjoining land offering access to the public roads without crossing over the neighbor’s property.

Perhaps the city builds a new road or creates new access putting an end to the landlocked situation.

Another scenario when the easement necessity is no longer needed and will terminate is when the court renders a judgment awarding a specific type of easement to property.

In that case, there is no longer a necessity but will result from a court judgment.

Easement vs trespassing 

There is a fine line between easement by necessity and trespassing.

An easement by necessity is a certain right that is “essential” or “crucial” for a property owner to fully enjoy their property.

A person cannot invoke a necessity when accessing a neighbor’s land can provide a quicker or faster access to the public roads when the property is not effectively landlocked.

Without the law to provide the rights of access or necessity easements, you may be trespassing on your neighbor’s property.

Trespassing is a property owner’s right to exclude others from the land or real estate property.

Someone accessing, using or interfering with someone’s full enjoyment rights to a property can be considered as having trespassed.

There are important sanctions and consequences for trespassing, so it’s important to be able to differentiate what’s a necessary right to exercise to enjoy one’s land.

Takeaways 

So what does an easement by necessity mean in real estate?

Let’s look at a summary of our findings.

Easement by necessity:

  • An easement can be created by necessity giving a parcel of land access to a road, track or path leading to the public road
  • Easements by necessity are typically created by law
  • When a parcel of land is landlocked through the sale, subdivision or transfer of a neighbouring or adjoining land, an implied easement by necessity can be created 
  • If you access or use someone’s property without legal rights or due to necessity, you may be trespassing 
Adverse possession 
Conveyance Deed 
Easement appurtenant 
Easement by prescription 
Easement in gross
Equitable servitude 
Neighbor disputes 
Property boundaries 
Property law 
Property ownership 
Real estate lawyer 
Real property 
Rights of way easement 
Structural encroachment 
Trespassing 
Utility easement 
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