Easement by Necessity vs. Easement by Prescription

In real estate, an easement is the legal right to use property granted to people or organizations who do not own that property. There are typically two parties with rights concerning an easement: the “dominant estate”, held by the person who benefits from the use of the easement; and the “servient estate”, held by the owner of the land upon which the easement crosses. An easement is more than a personal privilege of use and bestows upon the holder legal rights that cannot be deprived by the mere wish of the owner of the servient estate.

Several types of easements exist. Understanding how they work can help you defend your rights. This article will focus on two types of easements: easements by necessity and easements by prescription.

What Are Easements?

To clarify further, an easement grants a person or entity rights to a property without possessing ownership of the property itself. The purpose of such right could be:

  • Utility installation such as internet cables or electric lines
  • Laying railroad tracks
  • Creating a pathway for pedestrian or vehicle traffic

When creating an easement, both parties must ensure absolute clarity of the scope of the easement. Otherwise, conflict regarding the use, maintenance, or scope of the easement will ensue. The goal of both parties in creating an easement is to establish their rights in such a manner that both the property owner and the easement holder can know and protect their specific interests.

In most cases, property owners have the right to deny an easement on their property, but once the easement is established, they must comply with its conditions. However, it is possible to lift an easement with the assistance of a qualified property law attorney.

Easement by Necessity

An easement by necessity is a legal right that arises out of practical necessity. It allows an individual or entity to access another property owner’s land in order to enjoy their own property. This easement may be established when a portion of a larger tract of land is sold, resulting in either the sold tract or the tract still held by the original owner becoming landlocked. Generally, this means an owner must cross his or her neighbor’s land to access the closest public road.

To establish an easement by necessity, the owner must prove that:

  • The dominant and servient estates were previously owned by the same person or entity
  • The easement is reasonably necessary for use of the dominant estate
  • The dominant estate became landlocked when the land was partitioned
  • There is currently no means of entry or exit other than across the servient estate

In its analysis of the claim for an easement by necessity, a court will consider factors such as: how recently the land was sold, the intent of the seller and purchaser at the time the land was sold, and the feasibility of alternative access routes.

If alternative routes become available after the establishment of an easement by necessity, the owner of the servient estate may petition the court to terminate the easement, as the easement is no longer a necessity to access the property.

Easement by Prescription

In Virginia, an easement by prescription is a legal right acquired through the (1) open and visible, (2) continuous, and (3) exclusive use of another owner’s property, (4) without the permission of the property owner, (5) for at least twenty years. Unlike an easement by necessity, which arises out of practical necessity, an easement by prescription is based on the concept of adverse possession. It means that the prior use of the property leads to the legal right to continue the same use in the future.

Examples of Easement by Necessity and Prescription

An easement by necessity may arise when a landowners sell a portion of their land that has been the only means of access to another part of their property. When such a situation occurs, the law recognizes the need for an easement to make sure that the landlocked property remains accessible. E.g. Palmer v. R.A. Yancey Lumber Corporation, 294 Va. 140 (2017).

An easement by prescription may arise when a person continuously uses a road over a neighbor’s property for vehicle or foot traffic without permission for 20 years. An easement by prescription allows them to maintain the legal right to use that road. E.g. Nelson v. Davis, 262 Va. 230 (2001).

Find Trusted Property Law Attorneys in Richmond, VA

Both easements by necessity and easements by prescription require a careful approach to establish and maintain. Understanding the difference between the two will help you protect your rights.

Whether you want to establish an easement or lift it, you need the assistance of an experienced property law attorney. The ThompsonMcMullan, P.C. legal team has significant experience with easements in Virginia. If you have any questions, reach out for a consultation at any time.