Easement by Necessity

Thankfully, easements are a legal solution to many other problems, including this one. This article explains an easement by necessity, how easements work by necessity, and what they mean to real estate agents and property owners.

 

Easement By Necessity: What Is It?

The easement by necessity is an easement in which you can use a particular piece of land to get to another area. By necessity, an easement is a court-created easement, like an implied easement. An easement of this type gives way only if necessary to use the land properly.

In other words, easements are appurtenant by necessity because they “run with the land.” This means the easement’s rights pertain to the land, not the owner. Land rights typically fall into dominant tenements and servient tenements. The dominant tenements receive the easement rights while the servient tenements receive them.

 

Develop for a variety of reasons.

It is necessary for an easement to develop for a variety of reasons, including:

• Access to a public road
• Maintenance access rights
• A proper drainage system is essential.
• Light-receiving right

By implication, the owner of adjoining land can lose access, benefits, or enjoyment of the land if the adjoining land splits, sells, or transfers to a different owner.

 

A Brief Background

As part of this case, in 1788, the state granted military lots 2058, 2069, 2070, 2071, and 2079 to Revolutionary War veterans. Before 1788, a property survey did not include roads or waterways connecting the lots.

The state received Dobson’s property in 1843 when he died without heirs. After the state sold lot 2069 to Wiland and lot 2070 to Winterburg, a new survey revealed the Casselman River crossed a portion of lot 2070.

Winterburg granted a railroad right of way a decade later. In 1965, Gunfeld Coal Company (Gunfeld) purchased lot 2070. And in 1988, Carey purchased lots 2058 and parts of lots 2071 and 2079. In 1992, Pepper purchased lot 2069.

 

No public road

It is adjacent to Gunfeld’s lot, and no deeded access right to it. Rumsfeld has not harvested timber on lot 2070 since 1965. Carey bought an easement crossing lot 2069 and another to access the public road when he purchased his lots.

Pepper bought an adjoining parcel with access to the public road when he bought lot 2069. In his lawsuit, Rumsfeld claimed either an easement across Pepper’s lot to access the public road or Carey’s and Pepper’s lots.

According to Gunfeld, the circuit court did not establish an easement by necessity because he failed to prove the abovementioned elements. The Court of Special Appeals of Maryland appealed that ruling.

 

Easements By Necessity Are Made In What Way?

A landlocked property is granted an easement by necessity. Property owners can grant an easement in necessity if their land or property is entirely inaccessible and can only be reached through the land or property of a neighbor. As discussed above, several requirements exist to establish this legal document for both the dominant estate and the landlocked property owner.

As part of the “necessity,” the non-landlocked property (servient tenement) must offer the dominant tenement rights of way to the landlocked property (dominant tenement). It is the owner’s responsibility to justify the need for an easement following the subdivision of the land by following the following steps:

• The severance of Unity
• Access to the Internet ends
• Making use of the land for the purpose it was intended

 

The Easement Process

To understand easements as a whole and how they relate to necessities, it is essential to understand them as a whole. We previously wrote about an easement that allows people to drive through other people’s property. For more information about this topic, please refer to our previous article.

There is no doubt that easements are unique contracts between the two parties involved, as they specify the specific use of the property and give the property owner the option of terminating the easement. An easement contract is sometimes sold with the property, so potential buyers need to know this.

The easement usually appears on the deed; if you do not own the property or have not purchased one yet, you can get a copy of the deed and easements listed there.

 

Types of easement agreements

Three types of easement agreements exist. The type of easement granted depends on the goals of each party. Property law defines implied easements, prescriptive easements, and appurtenant easements. Terminating some of these easements can be difficult.

As long as the “necessity” exists, easements can last as long as the law requires them to be in place to enable access to the street or access to an owned property. A private property easement will be terminated by necessity if it no longer meets the legal conditions to survive if it no longer meets the “necessity” to exist.

 

Easement by Necessity Example

Person A owns a home with an additional building that could serve as a living space for living. This is the most common example of an easement by necessity. In the case of Person A, selling their building and adjacent parcels of their property to Person B is creating an easement by necessity.

 

 

A private road must be accessed by Person B, but they must pass through Person A’s property because of the land layout and trees. There is no way to access the landlocked parcel from Person A’s property, so they must pass through it.

Because Person A holds the dominant tenement, Person B expresses the need to pass through the other parcel to reach the private road. Having dealt with some real estate attorneys, Persons A and B agree to a necessity easement, meaning Person B can access the road by crossing through Person A’s property.

 

Way to reach that parcel.

A scenario where two individuals own adjacent parcels of landlocked land can be considered an easement of necessity. These situations are reasons to create an easement because it is the only way to reach that parcel. As a result, a servient tenement easement arises over the non-landlocked tract. This easement can access the dominant tenement or the landlocked parcel.

A strict necessity exists following the traditional viewpoint. A landlocked property must prove that it lacks access due to a severance of title. Which means adjoining property owners must surround it. There should be no legal access to the owner’s land, such as through an easement or license.

For the easement to be effective, it must demonstrate a valid need. It must also be reasonable because there is no other practical way of using the property without it; it must not simply be convenient. The typical viewpoint overlooks easements for roadways and utility lines, but this viewpoint does. When the grant of a landlocked parcel explicitly states that the new owner will not have access to the grantor’s property across the grantor’s land, there will not be an implied easement by necessity.

 

Easement by Necessity: How Do We Get One?

When you request an easement by necessity, you must have a reason to use the parcel of land. Depending on the local laws and the case facts, property owners may be able to claim non-collaborative easements from neighbors under specific laws in some jurisdictions.

The easement becomes effective once the court has granted it. Usually, a landlocked property owner needs an easement of necessity to access their land.

 

Accessible by entering another property.

In these cases, the court would issue an easement because it is necessary to enjoy the land. An easement may also be available when a wall needs repair, only accessible by entering another property.

To determine whether the court awards an easement, it will try to infer the original parties’ purposes, determine whether the dominant or servient tenement will suffer more damage or inconvenience, and impose an order accordingly.

If an easement of necessity becomes unnecessary due to a new building or deed easement, the easement automatically terminates. You will likely be able to get an easement by necessity if your situation fits these criteria. If you have any questions, consult a lawyer or an attorney who can advise you about your case.

 

Easements by Necessity versus Other Easements

 

Easement by Prescription

Definition: Prescription is the acquisition of an easement over another’s property resulting from continuous, open, notorious, and adverse use.

 

Key Differences:

• Origin: In many cases, easements by prescription and easements by necessity result from the actual use of property, usually without the owner’s permission, over a long period.
• Duration: A prescription easement may be permanent until it terminates, while an easement established by necessity may last for the duration of the need.
• Consent: Unlike prescription easements, easements by necessity require legal processes and negotiation with the owner.

 

Easement by Implication

Definition: An easement by implication arises when parties impliedly intend an easement to exist but don’t expressly state so.

 

Key Differences:

• Origin: In most cases, easements arise from “prior uses” of the property before it became separate ownership. Easements often arise from a pressing need, often related to access.
• Intent: By implication, an easement depends on an inferred intent from the parties, usually based on past usage.
• Duration: By necessity, easements last for the duration of the necessity, just like other easements by implication.

 

Express Easements

Definition: Deeds and will create express easements by a written agreement between parties.

 

Key Differences:

• Origin: Easements by necessity result from necessity without a written agreement. Express easements have an explicit grant.
• Documentation: Easements by necessity do not always have a written agreement but can have one once the court recognizes them. These easements need to appear in local land records.
• Consent: It is usually the owner of the servient tenement who grants an express easement. However, an easement might happen without the owner’s explicit consent if the tenement becomes landlocked.

 

Efficiencies and challenges

 

Dominant Tenement Advantages:

 

Access and Utility:

First, an easement by necessity is an access easement, ensuring that public roads and utilities can access the dominant property.

 

Increased Property Value:

Property with proper access is usually more desirable and marketable, so the value of the dominant tenement increases.

 

Legal Protection:

A legal easement of necessity ensures uninterrupted access to the dominant tenement once established.

 

Potential for Development:

A dominant tenement owner may have more development opportunities when access is guaranteed.

 

Flexibility:

Sometimes, the dominant tenement will negotiate terms that allow the easement to feature in different ways, such as for utilities.

 

Concerns regarding the Servient Tenement:

 

Restricted Use:

Servient tenants may have limited access to the easement-affected portion of their property. For instance, they may be unable to build structures or make specific improvements there.

 

Potential for Disputes:

A legal dispute might result if there is disagreement over the easement’s exact location, width, or use.

 

Decreased Property Value:

If the easement impacts the utility or aesthetics of the servient property, it might lower its market value.

 

Maintenance Responsibilities:

In some cases, the servient tenement may need to maintain the easement area, such as clearing a path or a road, depending on the terms and local laws.

 

Privacy Concerns:

The servient tenement might lose its privacy if there is an easement, mainly if it frequently receives visitors.

 

Potential for Misuse:

The dominant tenement risks misusing the easement beyond what has been agreed upon or legally allowed.

 

Bottom line

During your real estate exam, you’ll need to know that if you need an easement, only the court will grant it if necessary. Additionally, you’ll need to understand that easements, by necessity, allow you to use a piece of land to reach another part without using another piece of the land.

A landowner must use the neighbor’s property to access a public road. Remembering those main elements will prepare you for your exam!