Understanding Easements by Necessity

In New Jersey and throughout the country, there are various types of easements connected to properties and to the owners of those properties. Easements are, in short, legal agreements through which one party or property has access to the other’s property without having any legal ownership interest in the property. Easements are also known as nonposessory legal interests in another’s property that are granted for a particular purpose. For example, the owners of House A might have an easement that allows them to use House B’s driveway to reach their newly built garage. In this example, the owners of House A can only use House B’s driveway to get to their garage — they do not have any legal interest in the actual real property on which the driveway sits, and they cannot use the driveway for other purposes, such as for parking visitors’ vehicles.

Typically, in order for easements to be lawful in New Jersey, they must be agreed to in writing. Yet some types of easements, known as implied easements or easements by implication, arise when real estate is divided into different parcels, and one or more of the parcels needs access to something like a road or a driveway. One type of implied easement is an easement by necessity, and our Summit land use lawyers can explain how these work.

Defining an Easement by Necessity 

An easement by necessity, which is a type of implied easement or easement by implication, is a specific kind of easement that “arises when a landowner conveys a landlocked parcel of land to another,” according to the Cornell Legal Information Institute.

New Jersey case law also clarifies an easement by necessity “arises only when there has been unity of ownership and a subsequent severance of title resulting in the grantor or grantee owning a parcel which is landlocked.”

What does this mean in practice? Imagine a property owner decided to divide their land into four parcels. In an aerial view, the land now looks like a rectangle divided into four equal parts, and the top left corner is landlocked. The bottom two parcels are both still adjacent to the public road that served the original parcel when it was one single property. The parcel to the top right abuts a public road that runs perpendicular to the other adjacent public road, and thus the top right parcel has access to that public road. However, the newly created parcel in the top left corner has no access to a public road. An easement by necessity will provide a path from that parcel to a public road because, as New Jersey case law suggests, “without it the landlocked parcel has virtually no utility to its owner.”

Requirements for an Easement by Necessity 

Easements by necessity have four required components:

• Former common ownership of the properties as one single property;
• Property was severed into multiple parcels;
• Easement was necessary at the time of the severance; and
• Need for the easement still exists (e.g., no new road was built behind the landlocked parcel).

Contact a Summit Land Use Attorney 

Whether you are considering buying a property that was once part of a larger property that was later divided into different parcels and you need information about an easement by necessity, or you have questions or concerns about an existing easement by necessity related to your property, a lawyer can help. Do not hesitate to get in touch with one of the experienced Summit land use attorneys at Dempsey, Dempsey & Sheehan to ask any questions you have about easements by necessity and to discuss options if a land use issue has arisen. Contact us today for more information.

Sources:

law.cornell.edu/wex/implied_easement_by_necessity

casetext.com/case/ghen-v-piasecki#:~:text=An%20easement%20by%20necessity%20arises,a%20subsequent%20severance%20of%20title%E2%80%A6&text=The%20burden%20of%20proof%2C%20sufficient,access%2C%20rests%20on%20the%20party%E2%80%A6