Easement by Necessity Explained

An easement by necessity is a right to cross a neighbor's land that a court implies when a parcel is left landlocked after a larger tract is split. You must show the two parcels once had one owner and that the split itself left your parcel with no legal access.

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This guide covers what the law requires, how it differs from other easements, and what it costs in time and money. Easement law changes from state to state, so treat this as general information and not legal advice.

Definition

An easement is a right to use someone else's land for a set purpose, such as driving across it. Most easements are written down in a deed. An easement by necessity (also called an easement of necessity or a way of necessity) is different. No one wrote it down. The law implies it because a piece of land was cut off from the road when a larger tract was divided.

The idea behind it is simple. Courts assume that a person who sells or keeps a piece of land meant for that land to be usable. Land you cannot legally reach is close to useless. So when a split creates landlocked property, the law presumes the parties intended a way in and out across the other piece.

Cornell's Legal Information Institute describes it as an easement that arises when a landowner conveys a landlocked parcel to another person (Wex: implied easement by necessity). The land you cross is called the servient estate. The land that benefits is the dominant estate.

The elements

The requirements for an easement by necessity are short, and courts apply them strictly. The Restatement (Third) of Property: Servitudes covers them in section 2.15, "Servitudes Created by Necessity." The Supreme Court of Texas listed them in Hamrick v. Ward (2014), and it put the burden of proving each one on the person claiming the easement.

1. Common ownership

At some point in the past, one owner held both your parcel and the parcel you need to cross. Lawyers call this unity of ownership or unity of title. It does not have to be recent. The common owner may be several owners back in the chain of title, so the proof can sit in deeds that are decades old.

2. Severance

That common owner divided the land. The owner sold part and kept part, sold pieces to different buyers, or left pieces to different heirs. The split is the event that creates the easement.

3. Strict necessity at the time of severance

The split itself must have left one parcel with no legal access to a public road. Timing is the key point. The necessity has to exist on the day of the severance. If your parcel had road frontage back then and lost it later, for example because a road was closed or you sold off your own frontage, this doctrine usually does not help.

Most states use a strict necessity test. Under the traditional view, the owner must show the parcel was left with no legal way in at all. A route that is steep, long, or costly to build usually still counts as access. A minority of states use a looser reasonable necessity test, which still requires more than convenience. Wex describes both views in its entry on the implied easement by necessity, linked above.

The wording of the deeds matters too. The easement rests on what the parties are presumed to have intended. If the deed plainly says the buyer gets no right of way across the seller's land, a court will generally not imply one, as the same Wex entry notes.

Easement by necessity vs implied easement by prior use

An implied easement is any easement the law reads into a land transfer even though the deed is silent. There are two main kinds. One is the easement by necessity covered above. The other is the implied easement by prior use, sometimes called an easement implied from a quasi-easement.

An implied easement by prior use starts the same way, with one owner and a split. The difference is what you prove next. With prior use, you show that before the split the owner was already using one part of the land to serve the other part, such as a driveway, a farm lane, or a buried water line. That use has to have been apparent and continuous at the time of the split, so a buyer looking at the land would have known about it. The Texas court in Hamrick v. Ward, cited above, lists these elements side by side with the necessity elements.

The practical differences are these:

• What you prove. Necessity looks at whether the parcel had any legal access after the split. Prior use looks at what was already on the ground and in use before the split.
• How much need. Necessity usually requires strict need. Prior use usually requires only that the use be reasonably necessary to enjoy the land.
• What it covers. Prior use often covers things beyond access, such as drainage or utility lines. Necessity is mainly about getting in and out.
• How long it lasts. An easement by necessity ends when the need ends. A prior use easement generally does not. Hamrick v. Ward describes the prior use test as reasonable necessity at the split, not strict and continued necessity. Check the rule in your state.

Easement by necessity vs easement appurtenant

These two terms answer different questions, so they are not really rivals. "Easement by necessity" describes how an easement was created. "Easement appurtenant" describes what the easement is attached to.

An easement appurtenant belongs to a piece of land, not to a person. It involves two parcels, one that benefits and one that bears the burden, and it transfers along with the benefited parcel (Wex: easement). The other type, an easement in gross, belongs to a person or company, such as a utility with a power line easement.

An easement by necessity is always appurtenant. It exists to serve the landlocked parcel, and it stays with that parcel. So every easement by necessity is an easement appurtenant, but most appurtenant easements are created some other way, usually by a written grant in a deed.

Easement by necessity vs prescriptive easement

A prescriptive easement comes from long use without permission, for a number of years set by state law. It does not need a common owner, and it does not need the land to be landlocked. An easement by necessity needs both of those things, but it needs no history of use at all. The two doctrines fit different situations.

Examples

The examples below are made-up situations meant to show how the rules work. They are not real cases, and a real court could decide similar facts differently.

Example 1: the classic split

A farmer owns 80 acres with frontage on a county road. In 1975 he sells the back 40 acres to a neighbor's son and keeps the front 40. The deed says nothing about access, and the back 40 touches no road. All three elements are present: one owner, a split, and no access created by that split. The back 40 likely carries an easement by necessity across the front 40, and it passes to whoever owns the back 40 today.

Example 2: no common owner

A buyer picks up 10 wooded acres at a tax sale. The parcel is surrounded by three ranches. A title search shows that the 10 acres and the ranches never shared an owner after the original government grant. With no common ownership, an easement by necessity is very unlikely, no matter how badly the buyer needs access.

Example 3: hard access is still access

An heir inherits a hillside parcel that touches a public road along one edge, but the frontage is a steep bank. Building a driveway there would be expensive. The neighbor's flat field would be far easier. In a strict necessity state, the claim likely fails, because the parcel has legal access even though it is hard to use.

What it takes to get one

An easement by necessity is one of several ways to get access to landlocked property. It is rarely quick. The claim rests on old deeds that show a common owner and the split, and the person claiming the easement carries the burden of proof.

It becomes official in one of two ways. The neighbor signs a written easement that is recorded, or a court issues a judgment that the easement exists. When a court decides, it sets the route and width based on what is reasonable for both parcels.

Cost and timeline

There is no standard price, and we will not guess at one. The cost depends on a few things.

• Title work. The older and messier the chain of title, the more research it takes to find the common owner.
• Survey. A boundary survey and a legal description of the route are usually part of the bill.
• Attorney fees. A negotiated, recorded easement costs far less than a contested lawsuit. Fees climb if the case goes to trial or appeal.
• How hard the neighbor fights. This is the biggest driver. One servient owner who agrees is a very different case from several owners who all object.
• Building the road. Winning the easement gives the owner a legal right. The owner still pays to build and maintain the driveway.

On timing, think in relative terms. A neighbor who signs an agreement can wrap things up in weeks to a few months. A dispute that settles after lawyers get involved takes longer. A contested lawsuit commonly runs a year or more, and an appeal adds to that. During that time the parcel stays hard to use, hard to finance, and hard to sell. Property taxes keep coming too.

This is the point where many owners, especially heirs who never wanted the land, decide the fight is not worth it. If that is you, you can ask for a cash offer on the parcel as it is, with no access, and let the next owner deal with the easement question.

Does it run with the land?

Yes. An easement by necessity is appurtenant, so it runs with the land on both sides. The right passes to each new owner of the landlocked parcel, and the burden stays on the servient parcel when it is sold. The Wex entry on the implied easement by necessity notes that the easement may lie dormant through several transfers of title and still pass with each one.

The weak spot is that the easement is unrecorded until someone makes it official. A new owner of the servient parcel may have no idea it exists. Until there is a recorded agreement or a recorded judgment, title companies and lenders have nothing to rely on.

When it ends

An easement by necessity lasts only as long as the necessity does. When the landlocked parcel gains another legal way to reach a public road, the easement generally ends. The Wex entry on easements states that an easement can be terminated if it was created by necessity and the necessity ceases to exist. The Supreme Court of California put it the same way in Murphy v. Burch (2009): the easement continues only as long as the need exists, and it terminates if adequate alternative access becomes available.

Common ways the necessity ends:

• A new public road is built along the parcel.
• The owner buys or is granted a deeded easement over another route.
• The owner buys an adjoining lot that has road frontage.
• The same person comes to own both the landlocked parcel and the servient parcel again.

State notes

These short notes show how much the rules vary. Each one names the statute or court opinion we checked. Laws change, so have an attorney confirm the current rule. For a wider view, see our guide to state laws on landlocked property.

California

Murphy v. Burch (2009) 46 Cal.4th 157 requires strict necessity, as when the property is landlocked, and common ownership of both parcels at the time of the conveyance that created the necessity. No easement is implied where another means of access exists, even a difficult or costly one. The court also urged extreme caution where the common owner was the federal government.

Texas

Hamrick v. Ward, 446 S.W.3d 377 (Tex. 2014), holds that a claim for road access to a landlocked, previously unified parcel must be brought under the necessity doctrine instead of the prior use doctrine. The elements are unity of ownership before the split, necessity and not mere convenience, and necessity existing at the time of severance. The owner must also show the need continues today.

Florida

Florida has two routes in section 704.01, Florida Statutes. Subsection (1) adopts the common-law implied way of necessity and requires unity of title from a common source other than the original government grant. Subsection (2) creates a separate statutory way of necessity for hemmed-in land used or meant for a home, farming, timber, or livestock, with no common owner needed. Under section 704.04 a court can set compensation, and the statutory easement lasts as long as it is reasonably necessary.

North Carolina

North Carolina courts recognize the implied easement by necessity, as in Wiggins v. Short (N.C. App. 1996). The state also has a separate cartway statute. Under G.S. 136-69, an owner with no public road or other adequate access who farms the land, cuts timber, or runs a mine, quarry, plant, or cemetery can petition for a cartway 18 to 30 feet wide. The owner pays the damages a jury sets.

Oklahoma

Besides the common-law easement, 27 O.S. section 6 gives a private person the power of eminent domain for private ways of necessity. In Childers v. Arrowood, 2023 OK 74, the Oklahoma Supreme Court said the statute needs no common owner but does require just compensation and a present necessity. It held that the statute also covers access to necessary utilities.

Michigan

Michigan courts imply an easement by necessity when an owner splits land and leaves a parcel landlocked. They require strict necessity, and the easement ends when the necessity ends, under Charles A. Murray Trust v. Futrell, 303 Mich App 28 (2013). Michigan does not offer a statutory fallback: in Tolksdorf v. Griffith, 464 Mich 1 (2001), the Michigan Supreme Court struck down the private roads act as an unconstitutional taking that mainly served a private purpose.

Wisconsin

Under Wis. Stat. section 82.27, the owner of landlocked real estate in a town can apply to the town board to lay out a public highway to the land. The owner must swear that a right of way cannot be bought, or can be bought only at an exorbitant price. The board decides in its discretion, and the applicant pays the assessed amount. This is separate from a common-law easement by necessity claim in court.

Alabama

Alabama recognizes the common-law easement by necessity, but original unity of ownership of both parcels is always required and mere convenience is not enough, under Helms v. Tullis, 398 So. 2d 253 (Ala. 1981). Ala. Code section 18-3-1 separately lets an owner whose land touches no public road acquire a right of way, not more than 30 feet wide, across intervening land, through condemnation procedures.

Arkansas

Arkansas courts list unity of title, severance, and necessity both at severance and at the time the easement is used, as in Edge v. Sutherland, 2015 Ark. App. 305. Ark. Code section 27-66-401 separately lets a landlocked owner petition the county court for a private road. The owner must deposit money to cover the neighbor's damages.

Common questions

This is general information, not legal advice. Laws vary by state. Talk to a real estate attorney about your parcel.