Legal Definitions - implied easement by necessity

An implied easement by necessity is a type of easement that arises when a landowner conveys a landlocked parcel of land to another. This means that the granted property has no direct access to a public road or right of way. Common law presumes that the grantee has the right to pass over the retained property if such passage is necessary to reach the granted landlocked property.

The elements needed to establish an implied easement by necessity are:

1. Unity of ownership prior to separation, meaning both estates were once owned as a single unit or tract
2. Necessity for the easement at the time of severance

The traditional view requires strict necessity. Under strict necessity, the owner of the landlocked property must prove that the severance of title caused the property to be absolutely landlocked, meaning the property must be entirely surrounded by adjoining landowners and the owner must not have any legal way of reaching their land, such as through an existing easement or license. The minority view requires reasonable necessity. Reasonable necessity requires that there can be no other reasonable way of enjoying the property without the easement; it requires more than mere convenience.

Implied easements by necessity can be seen as problematic because they divert from the statute of frauds. Because implied easements by necessity are not recorded, bona fide purchasers may not be aware that the land they are purchasing is burdened by an easement. Alternatively, implied easements by necessity can be seen as advantageous because they allow people to make use of their land. If the courts did not recognize these easements, then landlocked land property would not be able to be used because the owners could not reach it, or the owner of the landlocked property would have to negotiate with the adjoining property owner for an easement, which leaves the landlocked property owner vulnerable to extortion.

An example of an implied easement by necessity is when a landowner sells a piece of land that is surrounded by other properties and has no direct access to a public road. The new owner of the landlocked property would have the right to pass over the retained property to reach their land. This easement may lie dormant through several transfers of title and still pass with each transfer as appurtenant to the dominant estate.