Rules of the Game: Implied Easements

Part 1 | Part 2 | Part 3

Part 4: Easement by Necessity

Knud E. Hermansen, PLS, PE, PhD, Esq. and A. Richard Vannozzi, PLS, MS

The first three parts of this series discuss easements that arise by implication and not by expressed grant. Implied easements are legally recognized but not expressly stated. Standards such as the ACSM/ALTA Land Title Standards obligate the surveyor to be aware of and consider easements that may not always exist by express creation.

One additional form of implied easement is one that arises by necessity. An easement by necessity requires:

1. a use (need) that is a reasonable necessity at the time of severance, and
2. that it will cross the remaining land of the grantor (or the grantor’s heirs and assigns).

In the example in Figure 1, 
let’s assume the lot and home that was conveyed uses a driveway that is a trespass on the neighboring property. As a consequence, an easement by necessity across the retained lot is required to provide legal access to the conveyed lot.  This easement by necessity is created when the conveyed lot is severed from the retained lot.  This easement would burden the entirety of the retained lot and, at least theoretically, burden any and all lots created from the retained lot.

An easement by necessity generally requires there be strict necessity and not just a use that would be beneficial, less burdensome, or more convenient. For example, you could not argue that a lot that is conveyed with a six-foot-wide access easement should have a wider easement by necessity simply because the easement as is would not allow for larger trucks or equipment (needed to build a house).

Some states would not allow an access easement where the lot borders navigable water on the presumption that access, though difficult, is possible by travel on the navigable water.
Finally, consider when an easement by necessity burdens the grantor’s remaining lands in a series of sequential conveyances of vacant land. In Figure 2, access to the public road from Lot B would be more convenient by using the existing road through Lot A. However, unless the grantor reserved an easement to use the road when he or she conveyed Lot A, the implied access from Lot B by necessity has to pass through what were the remaining of the grantor’s lands at the time Lot B was conveyed. This is true even though subsequent grantees of the remaining lands presumed the owner of Lot B would use the road over Lot A.

As the examples illustrate, to correctly identify when an implied easement arises and where it would exist the surveyor must understand easements created by necessity and be cognizant of the sequence of the conveyances and the disposition of the various lots. 

Identifying and characterizing easements by necessity can be a complex research problem for the surveyor on an ALTA/ACSM Land Title Survey, for example. On a parcel where the various boundaries are created through different families of sequential conveyances, this complexity can give rise to additional liability for the surveyor if the proper status of such easements by necessity is not identified.

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