Easements of necessity: Two parcels may be so situated that an easement over one is “strictly necessary” to the enjoyment of the other. If so, courts are willing to find an “easement of necessity. Unlike an easement by implication, the easement of necessity does not require that there have been an actual prior use before severance.  Conversely however, the necessity must be “strict” rather than “reasonable.”

The most common example of an easement of necessity is where a parcel of land is “landlocked” and access to a public road can only be gained via a right of way over an adjoining property.

There are three separate elements the law has established:

1. prior common ownership of the dominant and servient estates
2. transfer of one of the estates by the common grantor, creating the lack of access, and
3. necessity of the easement for making use of the transferred estate

A right to a way of necessity can lie dormant and be activated by a remote