Necessity and Permissive Easements
When one party needs to access the property of another party, perhaps to access public property or a portion of their own property, they may seek what is called an "easement." Easements are agreements that describe how a party may use another party's property, typically outlined in a deed or will. For instance, an individual may seek an easement in order to legally walk along a path on their neighbor's property in order to access a lake or river. If you have an easement, you are not permitted to "occupy," build, or do anything with that piece of property other than access it. However, some easements are agreements to not do something on your property that would negatively impact the easement holder, such as building structures that would block their view.
There are a number of different categories of easements, but this article focuses on necessity easements and permissive easements, a distinction based on whether or not the easement is crucial to the easement-holder's enjoyment of their own property. See FindLaw's Easements section for more articles on the subject.
The courts will find an "easement by necessity" if two parcels are so situated that an easement over one parcel of land is strictly necessary to the use and enjoyment of the other parcel of land. The creation of this sort of easement requires that at one time, both parcels of land were either joined as one or were owned by the same owner. Prior use of the easement, however, is not required. The most common example of an easement by necessity is landlocked property, so that access to a public road can only be gained by having a right of way over an adjoining parcel of land. The legal theory is that the landlocked parcel was accidentally created, and the land owner forgot to include an easement or method of access to reach the road.
A necessity easement may also be referred to as an "implied" easement, since the implication is that one party has no choice but to use a portion of the other party's property just to access or enjoy their own property. For instance, let's say a large piece of land was cut into four separate properties, but the only way to access three of the new parcels is to go on the driveway of the fourth parcel. It's not simply a preference, but a necessity to use that driveway in order to access their homes.
A permissive easement is simply permission to use the land of another. It is essentially a license, which is fully revocable at any time by the property owner. In order to be completely certain that a permissive easement will not morph into a prescriptive easement, some landowners erect signs stating the grant of the permissive easement or license. Such signs -- often found on private roadways -- typically state: "This is a private roadway. Use of this road is permissive and may be revoked at any time by the owner."
For example, let's assume a property owner has the most convenient access point to a public hiking trail. Wanting to be a good neighbor, they institute a permissive easement simply by posting a sign granting access but stating that it is a private road. That way, passersby tread lightly knowing it's private property. But if it becomes a problem -- perhaps people start drinking on the road after hours, making excessive noise and leaving behind beer cans -- the property owner is completely within their rights to revoke this permissive easement.
Get Legal Help With Your Necessity or Permissive Easement Concerns
There are situations where the only way to access a piece of property is to trespass on your neighbor's property, even if just a little bit. But property laws being as they are, sometimes it makes sense to get formal legal permission in the form of an easement. A local real estate attorney can help you make the right decisions.
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