Easement By Necessity


An easement is a legal means of trespassing on another’s land. These access permissions are passed on from one landowner to another. There are various types of easement, all mandated by one legal reason or another.

Easement by necessity is a specific type of easement provided from one landowner to another.

What Does Easement By Necessity Mean?

This type of easement is specifically for those whose property directly borders another. If a piece of neighbor A’s property is separated from their main tract of property by the property of neighbor B, neighbor A is entitled to this type of easement.

Obtaining this easement would allow neighbor A to access the property divided from them, as it would be necessary for them to trespass on neighbor B’s property in order to reach their own.

In this instance, there is no practical way for neighbor A to reach their property without trespassing. This easement not only makes it legal for neighbor A to reach their property but prevents neighbor B from taking legal recourse against neighbor A for trespassing.

This type of easement can also be granted if neighbor A is completely landlocked by neighbor B’s property. It is not legal to landlock one into their property. In order for neighbor A to exit their property, they will have to trespass on neighbor B’s land and find themselves a likely candidate for being granted this easement.

How Does One Acquire An Easement By Necessity?

One must be sure their landlocked situation was caused by a division of land and not a newly purchased tract of land. Additionally, one must be blocked from accessing a public road by the property arrangement.

If one is sure they are within the bounds of applying for an easement, the easement will be granted by court order. Typically, it is advised to enlist the help of an experienced real estate lawyer in these cases.

They will be able to explain and argue real estate laws that bring into question your easement arrangement. Arrange a meeting with a real estate lawyer to explain your situation. If the lawyer believes you to have a strong case for a possible easement, they will likely risk representing you in court.

Next, be sure to speak to your neighbor regarding the easement. In many cases, your neighbor will be willing to work with you in order to make a case for the easement of the land. If both parties appeal to be in agreement and it is apparent the need for easement exists, it is likely you will not have to deal with a complicated battle in court.

Can You Be Forced to Give an Easement?

There are a lot of factors involved in determining if this type of easement is necessary. It is, after all, called by necessity. If it is clear there is no legal necessity for the property owner to be given access to the land, the original landowner will be able to fight this in court.

As the property owner requesting the easement will be asking to trespass over your land, they are already fighting an uphill battle. The court will likely not want to grant the easement unless it is truly found to be necessary.

What’s more, state law comes heavily into play when it comes to easement. Whether or not your state recognizes forced easement is something best discussed with a lawyer familiar with easement laws in your state.

An Example of Necessary Easement

For example, if one’s property has been severed long ago, prior to modern city planning, one may have recourse for easement. If a public road has since been built post-division and the layout of the land prevents neighbor A from accessing said new road without trespassing on neighbor B’s property, neighbor A will likely be granted the easement by a court of law.

For more real estate terms you will need to know for your exam, check out our other posts.