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Easements by necessity

On Behalf of | Nov 16, 2023 | Firm News

Easements can be provide practical solutions to problems with real estate, but they can also lead to a lot of problems for landowners.

Easements defined

An easement is a legal relationship in which one party has the right to use property owned by another party for a limited purpose. For example, public utilities often have easements over privately-held land in order to run power lines or other equipment.

On a more modest scale, easements can arise in situations involving neighboring landowners.

A relatively common scenario involves a lot of land that has been subdivided in such a way that one property owner must cross the boundary of another owner’s property in order to access their land. In such a case, the two neighbors might establish an easement, giving the landlocked property owner the right to cross the other’s property.

This right is limited. The landlocked owner might have the right to cross the other’s property line, but only for the purpose of accessing their own property.

Express or implied

As with many things in the law — and particularly in real estate law — it’s best to get everything in writing when establishing an easement. This is known as an “express easement.” An express easement can be written into a deed. This way, everyone involved understands their rights and the limitations on those rights. If one of the parties sells their property, the new owner will be fully informed about the easement because it is documented in the deed.

However, Indiana courts sometimes recognize easements that are not documented in writing but have been established through use and necessity. This type is known as an “implied easement.”

To illustrate how this works, imagine the subdivided lot of land we mentioned in the example scenario earlier in this pos. Now imagine that, for many years, the owner of parcel B has been routinely crossing parcel A to get to their own property. Doing so was necessarily in order to access parcel B. Neither party made a big deal about it.

Years go by, and the owner of parcel A has sold their land. The new owner decides to erect a fence around the parcel. This prevents the owner of parcel B from accessing their land.

The owner of parcel B might convince a court that an implied easement exists that allows them to cross parcel A in order to access their property.


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