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Necessity and Permissive Easements

There are several different types of property easements. This article focuses on two: "easements by necessity" and "permissive easements." These easements are based on whether or not the easement is crucial to the easement holder's use and enjoyment of their own property. To learn about other types of easements, see FindLaw's easements section.

What Is an Easement?

Easements are agreements written into property deeds that describe how one party may have limited access to another party's real estate. For example, you may be allowed to walk on a path on your neighbor's property in order to access a lake. This is a positive easement. It allows you to do something on their property.

Easement of Necessity

Giving a landowner right-of-way over an adjoining parcel of land in order to access a public road is the most common example of an easement by necessity.

Imagine a piece of farmland that has been divided in two. The first parcel lies along a county road and has a driveway leading up to a home. The second parcel of land lies beyond it and has no access to the county road, or any road. It is said to be "landlocked." There is no way to access it.

The courts have found that landlocking a parcel of real property is against public policy. It's no longer useful. If, when the property was divided, the new deeds did not contain a description of an easement for access, the court will assume it was accidentally left out.

The courts will find an implied easement by necessity so the second parcel is not landlocked. The creation of an easement of necessity requires that:

  • At one time both parcels of land were joined as one or were owned by the same owner.
  • The two parcels are situated so that an easement is strictly necessary in order to use and enjoy the landlocked property.

Granting of an easement of necessity does not require that the land had been used that way before.

A new easement agreement should be created in writing, containing a metes and bounds description, and be recorded at the office of the County Recorder of Deeds where the property is located.

Permissive Easements

A permissive easement is simply permission to use the land of another. That permission is fully revocable at any time by the property owner.

For example, imagine a property owner who has the most convenient access point to a public hiking trail. Wanting to be a good neighbor, they post a sign granting access to the trail but stating that it is a private road. Such signs are often found on private roadways stating: "This is a private roadway. Use of this road is permissive and may be revoked at any time by the owner." Passersby now know to tread lightly because it's private property.

But what if people start drinking on the road and leaving behind their beer cans, or making excessive noise late at night. The property owner is completely within their rights to revoke this permissive easement. The property owner should now erect a sign saying "Private Property."

If people regularly access a property in the same way but without permission, that access may eventually become a prescriptive easement. They can continue to use it, and if denied, could bring a case to court. This more often occurs on rural land where people may not know someone is using their land.

Once again, in order to be completely certain that a permissive easement does not morph into a prescriptive easement, a landowner can erect signage stating there is a permissive easement or license.

Get Legal Help With Property Law and Easement Concerns. Talk to an Attorney.

There are situations where the only way to access a property is to trespass. To protect everyone's property rights, it makes sense to get or give formal legal permission in the form of an easement. Talk to a local real estate attorney about whether a permissive easement or easement of necessity is appropriate for your situation.

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