Easement by Necessity: How Landlocked Parcels Get Access and What Shows in the Record
An easement by necessity gives a landlocked parcel access over land it once shared an owner with. How it arises, how it differs from implication, and how to check.
Quick answer
An easement by necessity is a right to cross a neighbor's land that a court recognizes when a parcel has no other access and was once part of the same property as the land it must cross. It is created by the facts, not by a recorded document, so it often does not appear in the records.
What is an easement by necessity?
An easement is a right to use someone else's land for a limited purpose, such as travel across it. Our guide to what an easement is covers the basics. This article covers one narrow way an easement comes into being: necessity.
The Legal Information Institute lists the ways easements are created: "by an express grant, by implication, by necessity, and by adverse possession" (Legal Information Institute, easement). Express grants are written and usually recorded. Adverse possession is covered in our prescriptive easement guide. Necessity and implication sit between them: no one wrote the easement down, but the law recognizes it anyway.
The standard picture is a landlocked parcel, meaning a parcel with no access to a public or private road except across land owned by someone else. If the landlocked parcel and the land it must cross were once one property, a court may find that a right of way was granted or kept at the moment they were split.
Definition
Easement by necessity — An easement implied by law, not written in a deed, that lets the owner of a landlocked parcel cross neighboring land to reach a road, because the two parcels once had a common owner.
What is the common source of title requirement?
Most states require that the two parcels trace back to one owner, called a common source of title. The reasoning is that the owner who divided the land is presumed to have intended access to go with it. A stranger's land does not carry that presumption.
Florida writes this rule into its statutes. Section 704.01(1) says "a right-of-way is presumed to have been granted or reserved" where a person grants land with no accessible right-of-way except over their own land, or keeps land that is inaccessible except over land they convey (Florida Legislature, Online Sunshine, Fla. Stat. 704.01). It adds that the right applies where "there is no other reasonable and practicable way of egress, or ingress" and the way is reasonably necessary for the beneficial use of the land.
It then states the common source rule directly: "An implied grant arises only where a unity of title exists from a common source" other than the original grant from the state or the United States. In plain terms, the landlocked parcel and the burdened parcel must have been owned together at some point after the government first granted the land.
This is why the chain of title matters. Whether a necessity easement can exist depends on whether the two parcels share an ancestor deed, and only the recorded history can show that.
What is an easement by implication?
An easement by implication is an easement that a court infers from the circumstances of a property division, even though the deed does not mention it. It is a close relative of the easement by necessity, and people search for both terms together.
The Legal Information Institute names "by implication" and "by necessity" as separate ways to create an easement, so the two are not identical. The exact tests for an implied easement differ by state and by court, and this guide does not set out a single national test. Check your state's case law or ask a real estate attorney.
What the two share is a feature that matters for records: neither needs a recorded easement document. The right comes from the facts around a conveyance, usually a sale that split one property into two.
Easement by necessity vs implication, express and prescriptive easements
The four creation routes differ in what they depend on and where evidence of them is found. The table below is a plain-language comparison, not a state-specific legal test.
| Route | Created by | Needs a common prior owner? | Usually in the recorded documents? |
|---|---|---|---|
| Express easement | A written grant or reservation | No | Yes, if the deed or easement document was recorded |
| Easement by necessity | Court recognition of a landlocked parcel | Yes (Florida requires a common source of title) | Not as an easement; only the deeds that split the land appear |
| Easement by implication | Inference from the circumstances of a conveyance | Generally tied to a split of one property | Not as an easement; only the deeds that split the land appear |
| Prescriptive easement | Long, open use as described by state law | No | No, unless a court judgment was recorded |
Do statutes create a way of necessity? Florida and Arizona compared
Some states go beyond the court-made rule. The two statutes below, both fetched from the legislatures' own sites, show the range. We used a fetched statutory comparison here because none of the county open data sets we track measures access easements.
Florida has two rules in one section. Subsection (1) recognizes the common-law implied grant. Subsection (2) creates a separate "statutory way of necessity exclusive of any common-law right" for land used or wanted for a dwelling, agriculture, timber or stockraising that is "shut off or hemmed in" with no practicable route to "the nearest practicable public or private road."
Arizona takes a different route. Under A.R.S. 12-1202 an owner whose land is so situated that a private way of necessity is needed for its proper use "may condemn and take lands of another" sufficient for the way (Arizona Legislature, A.R.S. 12-1202). That is a condemnation mechanism, a court process, rather than an implied right that arises from an old deed split.
| Rule | Where it comes from | Common source of title needed? | How the right arises |
|---|---|---|---|
| Florida implied grant of way of necessity | Fla. Stat. 704.01(1) | Yes, unity of title from a common source | Presumed granted or reserved when no other practicable access exists |
| Florida statutory way of necessity | Fla. Stat. 704.01(2) | Not stated in the subsection | Exists by statute for shut-off land used for a dwelling, agriculture, timber or stockraising |
| Arizona private way of necessity | A.R.S. 12-1202 | Not stated in the section | Owner may condemn land sufficient for the way |
Is an easement by necessity permanent?
Not necessarily. The Legal Information Institute states that "an easement can be terminated if it was created by necessity and the necessity ceases to exist." If the landlocked parcel later gains another way out, such as a new public road or a purchase of the land that once blocked it, the easement may end.
The same page lists two other ways easements end: if the servient land is destroyed, or if the easement was abandoned. The servient estate is the land burdened by the easement, and the dominant estate is the property that benefits. Our appurtenant vs in gross guide explains how those terms work.
Florida's statute adds a protection in subsection (1): where there is a common source of title, the right of the dominant tenement "shall not be terminated" merely because either parcel is transferred for nonpayment of taxes, whether by foreclosure, reversion or otherwise.
How does an easement by necessity show up in the record?
Usually it does not show up as an easement. No document creates it, so a search for a recorded easement against the parcel can come back empty while a right of access still exists.
What the record does show are the facts a lawyer would use to argue for one. Look for a deed that split a larger property into two parcels, a conveyance of a parcel with no road frontage, and a legal description that touches no public road. A plat map can make road frontage visible, and the metes and bounds language in a deed can show whether a parcel is surrounded by other land.
A court judgment can also appear. If someone sued to establish a way of necessity and won, the judgment or a document recorded after it may be indexed against the parcels. Without that, the easement exists in law but is invisible in the index.
This gap is why a records search and an on-the-ground look both matter. A search reports what was recorded; it cannot report an unrecorded right. For what that means for coverage, see title search vs title insurance.
Can a buyer lose or gain access without any recorded document?
How do you check whether a property has legal access?
Read the legal description and look for road frontage
Check whether the deed or plat shows the parcel touching a public or private road. A parcel with no frontage is the starting point for a necessity question.
Search for recorded easements and access agreements
Look in the county recorder or clerk index for easements, access agreements or road maintenance agreements naming the parcel or its neighbors. An express easement ends the question.
Trace the deeds back to a split
Follow the chain of title for the parcel and the land it must cross. Find the earlier deed that divided one property into two. Without that common owner, the common source rule is not met.
Check for court judgments
Search the same index and the local court records for a judgment establishing a way of necessity or condemning a private way.
Look at the ground
A driveway, gate or road that crosses a neighbor's lot may be the only sign of an unrecorded right. Note it, then ask an attorney what it means.
If access is unclear, get it in writing
An express easement, signed by the neighbor and recorded, is cleaner than a right that depends on a court. If a neighbor refuses, a quiet title action or a statutory process, such as Arizona's condemnation procedure, may be the route. A lawyer can advise.
Where HeritageDeed fits
HeritageDeed reports recorded documents at three depths: Current Owner Search $49, Two Owner Search $79 and 30-Year Search $129, in the counties on the title search coverage page. A search lists the deeds and recorded easements it finds. It cannot find an easement that was never recorded, and it is not title insurance or legal advice. For the method, see how to do a title search.
Key takeaways
Key takeaways
- An easement by necessity is implied by law for a landlocked parcel, not created by a recorded document.
- Florida requires unity of title from a common source, so the two parcels must have shared an owner after the original government grant.
- Easement by implication is a separate route listed alongside necessity, and its tests vary by state.
- Arizona handles private ways of necessity through condemnation under A.R.S. 12-1202, while Florida adds a statutory way of necessity for shut-off land.
- A necessity easement can end if the necessity ceases to exist.
- It often does not appear in a records search; the deeds that split the land are the evidence to look for.
Frequently asked questions
- What is an easement by necessity?
- It is an easement implied by law when a parcel has no way to reach a road except across neighboring land that once shared an owner with it. The right is based on the circumstances of the split, not on a recorded easement document.
- What is the difference between easement by necessity and easement by implication?
- The Legal Information Institute lists them as separate ways an easement is created. Both are implied from circumstances rather than written down. Necessity centers on a parcel with no other access. The tests for implication vary by state.
- Can you get an easement by necessity if the land was never owned together?
- In Florida, no. The statute says an implied grant arises only where a unity of title exists from a common source. A landlocked owner without a shared prior owner may need an express easement or a statutory process, depending on the state.
- Does an easement by necessity have to be recorded?
- No. It arises from the facts of a conveyance, so it can exist without any recorded easement. A court judgment or later written agreement may be recorded. Without one, the right can be invisible in the county index.
- Can an easement by necessity be terminated?
- Yes. The Legal Information Institute says an easement can end if it was created by necessity and the necessity ceases to exist. Gaining another route to a public road is the usual example, though a court decides disputed cases.
- How do you get legal access to a landlocked property?
- The cleanest way is a written, recorded easement signed by the neighbor. If that fails, the options depend on the state: an implied way of necessity, a statutory way such as Florida's, or condemnation of a private way as in Arizona. A real estate attorney can advise.
- Does a title search show an easement by necessity?
- Usually not as an easement, because nothing was recorded to create it. A search can show the deeds that divided the land and any recorded agreement or judgment. It is not title insurance and does not replace advice from an attorney.
Sources
Primary records and official documentation cited in this article.
HeritageDeed provides public-record search reports only. Reports do not constitute title insurance, an attorney opinion of title, or a title insurance commitment.