Easement by necessity
An easement by necessity is a right of access a court may recognise across neighbouring land, where a parcel became landlocked when a larger holding was divided.
It is a remedy for a problem someone else created — usually decades ago.
The elements#
Broadly three things must hold.
Prior common ownership. The parcel now landlocked and the land it needs to cross were once owned together.
Severance created the condition. The division is what left the parcel without access.
Necessity, rather than convenience. The standard concerns whether access is genuinely required, not whether an existing route is inconvenient.
It is not automatic#
The point that costs buyers money.
An easement by necessity does not exist because a parcel is landlocked. It exists because a court determines that the elements are met and declares it.
That means litigation — a quiet title or declaratory action, with the burdened owner as defendant, costing real money and taking time.
A buyer who purchased a landlocked parcel assuming necessity would supply access has bought a lawsuit rather than a right.
Where the claim fails#
No prior common ownership. A parcel that was always separate, and never had access, generally has no necessity claim. Nobody's severance created the problem.
Alternative access exists. Even poor or expensive alternative access can defeat necessity.
The necessity arose later, from something other than the severance.
The better route#
A negotiated, recorded easement.
It is certain. It defines the route, the width, the permitted use, and who maintains it. It is recorded, so it binds subsequent owners of both parcels. And it costs a fraction of litigation.
The price is whatever the neighbour asks — and once they understand the position, that can be substantial. Which is an argument for negotiating before the neighbouring property is sold to someone with different plans, not after.
Before buying rural land#
Establish access as a recorded right, in the chain of title.
A track used for forty years with a neighbour's tolerance is not access. A plausible argument for necessity is not access. A recorded easement is.
Where none exists, the correct assumption is that the parcel has no legal access, and the price should reflect the cost and uncertainty of obtaining it — which on some parcels exceeds what the land is worth.
Implied easement from prior use#
A related doctrine worth distinguishing, because it reaches similar ground on different facts.
Where land in common ownership was divided and a visible, continuous use was already being made of one part for the benefit of another — a driveway, a drainage line, a water pipe — a court may find an easement implied from that prior use.
The difference from necessity is what has to be shown. Necessity turns on the parcel being unusable without access. Implied easement from prior use turns on the use having existed and been apparent at the time of severance.
Both are litigated, both depend on facts about a division that may have happened decades ago, and both are considerably weaker positions than a recorded easement.