There are a few different ways in which easements can be created. In this article, we are going to discuss easements by necessity and prescriptive easements. However, first it’s important to remember that easements can be created by an agreement between parties. In this arrangement, easements may be created by using of a deed, a contract or another type of written agreement. Easements by necessity and prescriptive easements come into play when there is not an express agreement between the parties.
Easements by Necessity
An easement by necessity is similar to what it sounds like. It involves a parcel of land that’s been cut off from a public road and it’s necessary to cross the land of another to get to the public road.
To illustrate, consider the following example: Party A owns a large tract of land and sells the back half of that land to Party B. The back half of that land has no access to a public road other than by crossing the front half of the tract that Party A retained. Because the land now owned by Party B was part of a common parcel before a portion was sold and the only way Party B can obtain access to a public road is to cross the remaining land of Party A, a court would likely grant Party B an easement by necessity across the remaining land of Party A. In this case, Party A should have known that when they sold the back half of the large tract to Party B, Party B would need to obtain access to a public road by crossing the remaining tract of Party A.
That being said, most title companies would not insure an easement by necessity without a court order.