Easement by Necessity: Understanding the Concept and Its Implications

An easement by necessity is a type of easement that is created when a property owner needs to access a neighboring property to use their own property. This type of easement is also known as an “easement of necessity” or “implied easement.” In this article, we will delve into the concept of easement by necessity, its requirements, and its implications for property owners.

What is an Easement?

Before we dive into the specifics of easement by necessity, it’s essential to understand what an easement is. An easement is a non-possessory interest in someone else’s property that gives the holder of the easement the right to use that property for a specific purpose. Easements can be created in various ways, including by express grant, implication, or necessity.

What is an Easement by Necessity?

An easement by necessity is created when a property owner needs to access a neighboring property to use their own property. This type of easement is implied by law, meaning that it is not explicitly stated in a deed or contract. Instead, it is inferred from the circumstances surrounding the property.

To establish an easement by necessity, the following requirements must be met:

1. Common ownership: The properties involved must have been owned by the same person or entity at some point in the past.
2. Necessity: The easement must be necessary for the reasonable use of the property. This means that the property owner must need to access the neighboring property to use their own property.
3. Quasi-easement: The use of the neighboring property must have been continuous and apparent during the period of common ownership.

An easement by necessity is a type of easement that is implied by law, meaning that it is not explicitly stated in a deed or contract. Instead, it is inferred from the circumstances surrounding the property. To establish an easement by necessity, the following requirements must be met:

1. Common Ownership

The properties involved must have been owned by the same person or entity at some point in the past. This means that the properties must have been part of a larger parcel of land that was owned by a single entity. For example, if a property owner owns a large tract of land and then subdivides it into smaller parcels, an easement by necessity may be implied if one of the parcels needs to access a neighboring parcel to use its own property.

Types of Common Ownership

There are several types of common ownership that can give rise to an easement by necessity, including:

• Single ownership: A single person or entity owns multiple properties that are adjacent to each other.
• Joint ownership: Multiple people or entities own a property together, and then one of the owners sells their interest in the property.
• Trust ownership: A trust owns multiple properties, and then the trust is dissolved or divided among the beneficiaries.

2. Necessity

The easement must be necessary for the reasonable use of the property. This means that the property owner must need to access the neighboring property to use their own property. For example, if a property owner owns a parcel of land that is landlocked, an easement by necessity may be implied if the owner needs to access a neighboring property to reach a public road.

Types of Necessity

There are several types of necessity that can give rise to an easement by necessity, including:

• Physical necessity: The property owner needs to access the neighboring property to use their own property due to physical constraints, such as a lack of access to a public road.
• Economic necessity: The property owner needs to access the neighboring property to use their own property due to economic constraints, such as a lack of access to a market or customers.
• Practical necessity: The property owner needs to access the neighboring property to use their own property due to practical constraints, such as a lack of access to utilities or services.

3. Quasi-Easement

The use of the neighboring property must have been continuous and apparent during the period of common ownership. This means that the property owner must have used the neighboring property in a way that was visible and continuous during the time that the properties were owned by the same person or entity.

Types of Quasi-Easement

There are several types of quasi-easement that can give rise to an easement by necessity, including:

• Visible use: The property owner has used the neighboring property in a way that is visible to others, such as by building a driveway or installing utility lines.
• Continuous use: The property owner has used the neighboring property in a way that is continuous, such as by using a shared driveway or utility lines on a regular basis.
• Apparent use: The property owner has used the neighboring property in a way that is apparent to others, such as by installing signs or markers that indicate the use of the property.

Establishing an Easement by Necessity: Best Practices

To establish an easement by necessity, property owners should follow these best practices:

• Document the common ownership: Property owners should document the common ownership of the properties involved, including any deeds, title reports, or other records that show the properties were owned by the same person or entity.
• Document the necessity: Property owners should document the necessity of the easement, including any records or evidence that show the property owner needs to access the neighboring property to use their own property.
• Document the quasi-easement: Property owners should document the quasi-easement, including any records or evidence that show the use of the neighboring property was continuous and apparent during the period of common ownership.
• Consult with an attorney: Property owners should consult with an attorney who specializes in real estate law to help establish the easement by necessity.

By following these best practices, property owners can establish an easement by necessity and ensure that their property rights are protected.

Examples of Easement by Necessity

To illustrate the concept of easement by necessity, let’s consider a few examples:

1. Shared driveway: Two properties share a driveway that was created when the properties were owned by the same person. Even if the properties are now owned by different people, an easement by necessity may be implied, allowing each property owner to use the driveway to access their property.
2. Utility easement: A property owner needs to access a neighboring property to install or maintain utility lines, such as electricity or water. An easement by necessity may be implied, allowing the property owner to access the neighboring property for this purpose.
3. Beach access: A property owner owns a beachfront property, but the only way to access the beach is by crossing a neighboring property. An easement by necessity may be implied, allowing the property owner to access the beach.

Implications of Easement by Necessity

Easement by necessity can have significant implications for property owners. Here are a few:

1. Limitations on property use: An easement by necessity can limit the way a property owner can use their property. For example, if an easement by necessity is implied for a shared driveway, the property owner may not be able to build a fence or gate that blocks access to the driveway.
2. Maintenance responsibilities: Property owners may be responsible for maintaining the easement, such as repairing a shared driveway or utility lines.
3. Disputes: Easement by necessity can lead to disputes between property owners, particularly if one property owner tries to block access to the easement.

How to Establish an Easement by Necessity

If you believe that an easement by necessity exists on your property, here are the steps to establish it:

1. Review property records: Review your property records, including deeds and title reports, to determine if the properties involved were once owned by the same person or entity.
2. Document the necessity: Document the necessity of the easement, including any evidence of continuous and apparent use during the period of common ownership.
3. Consult with an attorney: Consult with an attorney who specializes in real estate law to help you establish the easement by necessity.

Conclusion

Easement by necessity is an important concept in real estate law that can have significant implications for property owners. By understanding the requirements and implications of easement by necessity, property owners can navigate complex property disputes and ensure that their property rights are protected.