Vantage Point: No Way Out

The urge was strong to call this “No Exit,” but remembrances of Jean Paul Sartre’s play of the same name about a hellish afterlife quickly squelched that idea. Instead, the chosen title should better reflect the realm of real property problems that can plague us in the current plane of life: parcels that do not seem to have access. I am currently working with property owners facing a quiet title action by landlocked neighbors claiming a right by “implied easement of necessity” to reach a public road. That made me investigate details of the language and of the chain of title. Problems with some of the plaintiffs’ arguments may temper the final decision by the court of equity, but it’s hard to say at this early stage.

When we say a parcel is landlocked, it means that it has no direct access to a public road, and owners must cross other people’s lands for ingress and egress. There are two parts to this situation: physical access and legal access. When there is legal access, either the parcel abuts a public road (over which the world at large has rights to travel) or there is an easement allowing access between a public road and that parcel over someone else’s land. When we speak of physical access, there is a trail, a road, a driveway, or there is an easement over someone else’s land allowing access between a public road and that parcel. But physical and legal access may not both be available. A parcel might have physical access but not the legal right to use it, such as frontage on limited access highways or abutting private roads. It might have legal access but not the physical means to exercise that right. And, of course, a parcel can have both or neither type of access.

Title insurance companies look carefully for physical or legal access, and place exceptions from coverage in their policies if a property neither abuts a public road nor has access by easement. That does not prevent people from buying landlocked parcels, though, sometimes with big plans in mind. The land is marketable but not insurable.

The courts may talk about creating landlocked situations as being against public policy and local ordinances may prevent creation of newly landlocked parcels, but there isn’t other legal prevention. So, we hear about “implied easements” and “easements by necessity” as resolutions to the problem. “Implication” refers to intent that was never committed to writing, and there are innumerable cases about later owners trying to mindread what the original parties “meant” to accomplish in their transactions.

The general principle of implied easements is that when someone sells part of a parcel, they grant by implication an easement necessary for “reasonable use” of the severed property in the place and to the extent that the grantors already used. This means that if there is a path that was used to access the divided-off portion, that access way becomes the location of the implied easement. The size of the easement is to be consistent with the use, or anticipated and foreseeable use of that subdivided area. So if, at the time of severance, the wooded new lot was used for recreation and there was no development going on in the area, access is based on historic use.

Easements of necessity are those that are considered “indispensable to the enjoyment of the dominant estate” and easements by necessity arise “by operation of law when land conveyed is completely shut off from access to any road by land retained by grantor or by land of grantor and that of a stranger” (thank you, Black’s Law Dictionary). This means that there must have been unity of ownership at the time of the creation of the need for access. States and courts vary in how they define the extent of the need, whether it is “strict necessity”, “great necessity”, or some other level, and also in how this is resolved. Statutes exist in some states to allow landlocked owners to try to negotiate with any and all adjoining owners to secure access, and if these efforts fail, to condemn an easement. Other states have no statutory allowances and require other legal actions to sue for access.

Whatever the legal method, if claiming that initial parties intended (implied) access as necessary to enjoy the land, resolution requires looking back in time for deeds and historical conditions. Was this parcel divided from the land the new owner now wants to cross, and landlocked by that severance? If not, there is no implied easement. But if yes, and the landlocked owner just doesn’t like the route the servient estate now offers, preferring a more direct or less arduous means, courts may treat this as an unacceptable argument for mere convenience, although possibly balanced by equity. Furthermore, if the landlocked parcel was used for hunting and timbering, modern desires to create a residential development do not translate to rights for a 50-foot wide roadway conforming to local land use ordinances.

About the Author

Wendy Lathrop, PS, CFM

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.