Necessity and Permissive Easements

Several types of property easements create rights of way across private property. This article focuses on two: easements by necessity and permissive easements.

These types of easements are based on whether it is crucial to the easement holder’s use and enjoyment of their own property. To learn about specific easements, consult a real estate attorney for further guidance. 

What Is an Easement?

Easements are agreements that describe how one party may have limited access to another party’s real estate. For example, a positive easement may allow you to walk on a path on your neighbor’s property to access a lake. It allows you, the grantee, to do something on their property.

If the owner of the property (grantor) records this right into their property deed, it becomes an express easement.

What Is an Easement of Necessity?

An easement of necessity is a legal remedy based on the idea that without the right to use a property, the easement holder couldn’t reasonably use their own property. The most common example of an easement by necessity is giving a landowner right-of-way over an adjoining parcel of land to access a public road.

Example of an Easement of Necessity 

Imagine a landowner divides a piece of farmland in two. The first parcel lies along a county road with a driveway leading to a home. The second parcel lies beyond it and has no access to any road. It is a landlocked parcel. 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 the new deeds didn’t describe an easement for access when they divided the property, the court will assume someone accidentally left it out.

Here, the landlocked parcel would be a dominant estate because it holds access benefits against the owner of the servient estate.

Requirements for an Implied Easement of Necessity

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

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

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

Creating an Express Easement of Necessity

To create an easement agreement, you should do so in writing (known as an express grant). You, the grantor (property owner), should:

• Sign it
• Make sure it contains a metes and bounds description
• Record it at the County Recorder of Deeds office where the property is

What Are Permissive Easements?

A permissive easement is permission to use another person’s land. The property owner can fully revoke that permission at any time.

Example of a Permissive Easement

For example, imagine a homeowner 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’s a private road. Such signs are often 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 they’re on private property.

Revoking Permission

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 has the right to revoke the permissive use.

The property owner should erect a sign saying, “Private property.” Here, adverse use of the land is illegal trespass. A claimant who tries to assert easement rights against such a person’s property may be barred by state law.

Regular Use of the Property Without Permission

But if people regularly access a property for a specific purpose 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 often happens on rural land where landowners may not know someone is using it.

Avoiding an Easement

Once again, to be certain that a permissive easement does not morph into a prescriptive easement, a landowner can place signage stating that there is a permissive easement or license. This would limit the general public’s use of the property (and the easement).

Get Legal Help With Easement Claims

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 best. They can advise you on the applicable real estate law that affects your rights.