This is the fifth episode in our new video series on easements. The prior episode covers the requirements for establishing an implied easement without any prior agreement between the grantor and the grantee.

This episode features the legal requirements for establishing an easement by necessity and a prescriptive easement by adverse use.

Easements by necessity

An easement by necessity is a variation of an implied easement. The demand for an easement by necessity arises when property is landlocked. Access to and from a public roadway across all adjacent properties is denied in landlocked property for the lack of the ability to create an easement by agreement or prior conduct.

Since public policy favors the productive use of land, an easement by necessity is created when property is landlocked. [Reese v. Borghi (1963) 216 CA2d 324]

However, to establish an easement by necessity, the user needs to:

  • show strict necessity; and
  • defend against any claim that the property was intended to be landlocked.

Strict necessity requires the easement to be the only possible means of access. [Zunino v. Gabriel (1960) 182 CA2d 613]

Additionally, an easement by necessity lasts only as long as the necessity exists. Thus, when a public road is built or an existing adjacent road is dedicated to the public, an easement by necessity is terminated since the need is terminated.

No time limitations exist for bringing a quiet title action to establish an easement by necessity since the easement legally exists as long as the necessity exists.

Even when an easement is strictly necessary to access landlocked property, an easement will not be created contrary to the intent of the original grantor dividing and transferring the parcel.

For example, a subdivider sells one parcel and retains another parcel which is landlocked. The deed for the parcel sold does not make mention of an easement to provide access to the landlocked parcel. Also, physical roadways do not exist.

Later, a potential buyer inquires about purchasing the landlocked parcel. The subdivider advises the buyer an easement does not exist to provide access to the landlocked parcel.

The buyer closes the purchase transaction assuming they will be able to establish an easement for access at a later time. The neighboring property owners refuse to grant the buyer an easement.

Is the buyer entitled to an easement by necessity so they may access and make use of their property?

No! An easement by necessity across the neighboring parcels does not exist since the subdivider:

  • did not intend for the property to be accessible; and
  • advised the buyer that an easement does not exist which provides access to the property. [Hewitt Meaney (1986) 181 CA3d 361]

Prescription: easement by adverse use

Consider a property owner who has used a roadway on an adjoining property to access their vacation home for over five years. The owner has never received permission from the neighbor to use the roadway.

The neighbor sells their property to a buyer who informs the owner they may no longer use the roadway.

The owner claims their open and continuous use of the road to access their property for more than five years entitles them to a right-of-way easement over the adjoining property.

Is the owner entitled to a roadway easement over the adjoining property owned by the buyer?

Yes! A prescriptive easement is established by the adverse use of another’s property for a period in excess of five years. [Thomson v. Dypvik (1985) 174 CA3d 329]

An easement created by prescription is similar to acquiring land by adverse possession. The difference is prescription establishes the right to mere use of another’s property, whereas adverse possession is an actual taking of exclusive possession under a claim of ownership and the payment of all property taxes.

To meet the legal requirements for acquiring an easement by prescription, the adverse use needs to be:

  • obvious enough to give the owner of the property notice of the use;
  • a continuous and uninterrupted pattern of use;
  • a use unauthorized by the owner of the property;
  • used under a claim of right; and
  • used for a period of five or more years without the owner acting to terminate the adverse use.

The five-year requirement of uninterrupted use continues with the transfer of the benefitting property to new owner(s) as long as the new owner(s) continue the same unauthorized use of the burdened adjoining property established by the previous owner, called tacking. [Jones v. Young (1957) 147 CA2d 496]

A prescriptive easement does not bar an owner of property burdened by the easement from all use of their land. To obtain the exclusive use and possession of real estate, a claim for adverse possession needs to be pursued which, unlike a prescriptive easement, requires the payment of liens and taxes on the property by the adverse possessor.

Easement limited to use

Like all easements, a prescriptive easement is limited in its use to the parameters of the use which created the easement.

For example, a neighboring rancher acquires a prescriptive easement for a right of way over an owner’s property — an easement benefitting the neighboring ranch.

The rancher only uses the easement for two months each year as the easiest means for accessing their ranch.

Later, the rancher subdivides their property into residential lots. The rancher claims their prescriptive easement allows them to construct a road on the easement for public access to the new development.

The owner claims the rancher may not use the easement for daily residential purposes since the rancher’s prescriptive use was occasional and agricultural.

May the owner limit the frequency and purpose of the neighbor’s use of the easement to the pre-subdivision usage?

Yes! The use of a prescriptive easement is limited to the adverse use which created the easement. [Cushman v. Davis (1978) 80 CA3d 731]

Bona fide purchasers

After a neighbor continuously uses an owner’s property for over five years without the owner’s permission, an easement is established — even when the neighbor later ceases to use the easement.

However, whether an unrecorded easement by prescription is enforced against a BFP who becomes the new owner of the burdened property is open to different interpretations.  Consider a pipeline beneath the surface with no sign of disturbance of the soil.

On one hand, the courts have applied public policy to allow the BFP to take title free and clear of unknown, unobservable and unrecorded easements. [Mesmer v. Uharriet (1916) 174 C 110]

Conversely, courts have also allowed the user to enforce the easement against a new owner who is a BFP since prescriptive easements are created by use and are not controlled by recording requirements. [Jones v. Harmon (1959) 175 CA2d 869]

A buyer is not considered a BFP when physical conditions on the property indicating an easement exists, such as a road or visible pipeline extending to the neighbor’s property, since the improvements constitute constructive notice of the use. [Rubio Cañon Land & Water Ass’n v. Everett (1908) 154 C 29]