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LEGAL MATTERS: What is an Easement by Necessity?

kathleen

Legal Matters is a regular column intended to address general legal concerns. Since every client walks in the door with a different set of circumstances, you should not rely on this column to provide specific legal advice. If you are in need of specific legal advice, please consult with an attorney; he or she will provide advice that is unique and tailored to your legal needs.

Easements by necessity are rare, but they are critical, especially when selling landlocked parcels.

It is presumed that, when a party conveys property, he or she conveys whatever rights are necessary for the beneficial use of the property and retains rights necessary for the beneficial use of the land he still owns. This presumption protects a grantor who fails to reserve the easement in writing and/or record it.

An easement by necessity must stem from “unity of title” and subsequent separation of that title. Further, an easement by necessity can only exist if the necessity existed at the time of the separation.

This situation arises most often when a landowner conveys part of a larger parcel that is entirely surrounded by the land from which it was severed, or by that land and the land of third parties, and the new parcel is not contiguous to the road.

For instance, a grantor who owns 10 acres of land with frontage on a local road may wish to sell two acres that include the entire frontage while retaining the 8 acres without frontage. In this case, grantor would be entitled to an easement from the road, over the conveyed parcel, to the parcel he retained — so long as he had no other way to get to his retained parcel. The easement would likely be restricted based on the use of the current landlocked parcel.

An easement by necessity terminates when the circumstances creating the necessity are removed. So, using our example above, if grantor obtained lands that afforded him access to his landlocked parcel, the easement by necessity would be extinguished. For this reason, it is always preferable to memorialize the easement in writing and have it recorded since that agreement will survive even if the necessity of the easement is removed.

It is in the best interest of a landowner to contact an attorney before parceling off any land that will landlock a retained parcel.

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