Easement by Necessity: Requirements and State Laws

An easement by necessity is a right of access that the law implies when one owner divides land and leaves a parcel with no way out except across the other part. To claim one, the landlocked owner usually must prove that both parcels were once owned together and that the necessity existed when they were split.

Pillar, a land research software company, wrote this guide. Each rule below links to the court opinion, statute or agency that states it, and we checked all of them on November 12, 2026. The law differs by state, so this guide is general information. Confirm how it applies to a specific property with a real estate attorney licensed in that state.

What is an easement by necessity?

It is an implied easement. Nobody writes it down. A court infers it from the deed that split the land, on the theory that the parties would not have meant to leave a parcel with no access.

The Texas Supreme Court says a necessity easement results "when a grantor, in conveying or retaining a parcel of land, fails to expressly provide for a means of accessing the land," and that "courts will imply a roadway easement to facilitate continued productive use of the landlocked parcel" (Hamrick v. Ward, Tex. 2014). In Colorado it "arises when the owner of a tract of land conveys part of that tract to another, leaving either the part conveyed or the part retained without access except over the other part" (Thompson v. Whinnery, Colo. 1995).

A simple case: a family owns 100 acres on a county road. It sells the 60 acres along the road and keeps the 40 behind them, and the deed says nothing about access. The 40 acres (the dominant estate) can now reach the road only across the 60 acres sold (the servient estate). The easement crosses that parcel, not whichever neighbor is most convenient.

Easement by necessity requirements

Courts word the elements differently, but three ideas recur: common ownership, a severance and necessity.

• Texas. The claimant must show "(1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access is a necessity and not a mere convenience; and (3) the necessity existed at the time the two estates were severed." The claimant must prove "both a historical necessity (that the way was necessary at the time of severance) and a continuing, present necessity for the way in question" (Hamrick v. Ward).
• Colorado. "(1) there must be unity of ownership of the entire tract prior to division; (2) the necessity for the easement must exist at the time of severance; and (3) the necessity for the particular easement must be great." The burden of proof "is upon the person claiming the easement" (Thompson v. Whinnery).
• Utah. The state's Office of the Property Rights Ombudsman requires unity of title and that, when the property was divided, at least one new parcel "had no reasonable access" and crossing another parcel is reasonably necessary (Utah OPRO).

Strict necessity vs. reasonable necessity

States disagree about how necessary the access must be.

Strict necessity. Texas requires "strict, continuing necessity" for a roadway necessity easement (Hamrick v. Ward). Pennsylvania also applies a strict standard, with necessity required both at severance and when the easement is used. But in 2019 its Supreme Court held that the lower courts erred in requiring the owners of a flag lot to prove "impossibility of alternative access." Courts must ask whether the parcel will be left without access "in practice, not merely by asking whether some remote alternative is hypothetically possible in the abstract." The factors include zoning restrictions and the likelihood of a variance, state or federal regulations, and topography (Bartkowski v. Ramondo, Pa. 2019).

Great or reasonable necessity. Colorado asks whether the necessity is "great." Its Supreme Court quoted an appellate ruling that "absolute physical impossibility" is not required, but no easement is implied "if available alternatives offering reasonable means of ingress and egress exist" (Thompson v. Whinnery). Utah uses "reasonably necessary" and denies a new easement where reasonable access exists, "even if the new easement would be more convenient" (Utah OPRO). Florida's statute adopts the common-law rule where "there is no other reasonable and practicable way of egress, or ingress and same is reasonably necessary" (Fla. Stat. 704.01(1)).

The gap may be smaller than the labels suggest. The Pennsylvania opinion quotes a treatise that the difference is "greater in theory than in practice."

Which neighbor's land does it cross?

Only land that was part of the original common ownership. In a 2012 Utah case, a landlocked owner sued for access across a neighbor's land that abutted a county road. The court held that the relevant severance was a later conveyance by a different owner, so any easement would cross that owner's land instead (Abraham & Associates Trust v. Park, Utah Ct. App. 2012). Utah's ombudsman sums it up: no automatic right "across the most convenient parcel to invade, but across 'the tract conveyed away.'" Florida adds that the common source of title must be something "other than the original grant from the state or United States" (Fla. Stat. 704.01(1)).

Can an easement by necessity be terminated?

Yes. In general it lasts only as long as the necessity does. The Texas Supreme Court: "Once an easement by necessity arises, it continues until the necessity terminates" (Hamrick v. Ward). A new public road, or recorded access over other land, can end it. Other events can too:

• Merger. If one person comes to own both parcels, "there is no longer a need for an easement," though it "could be recreated" if either parcel is sold (Utah OPRO). That matters in a land assemblage.
• Marketable title acts. In 2018 the Vermont Supreme Court held that even if an easement by necessity had arisen in 1948 to serve a landlocked 90-acre parcel, "because it has remained unrecorded," the state's Marketable Record Title Act had extinguished it (Gray v. Treder, Vt. 2018).
• Delay. Separately from termination, delay can bar a lawsuit to establish a claimed easement. According to a University of Maryland Extension summary of the unreported opinion, a Maryland claim filed in 2018 failed both for insufficient proof and because the owner, who bought in 1965, did not explain a 53-year delay that prejudiced neighboring owners.

Statutory ways of necessity: a state comparison

The common-law easement fails when the landlocked parcel and the land around it never had one owner. Some states fill that gap by statute: a landlocked owner asks a court or county board to create a way across a neighbor's land, and the neighbor is compensated. Several work like a private condemnation. Read the statute for the state where the land sits.

• Washington. An owner whose land needs "a private way of necessity" for "its proper use and enjoyment" may condemn land for it across another's property (RCW 8.24.010). Compensation must be "ascertained and paid" before the taking, and the court may award the burdened owner "reasonable attorneys' fees and expert witness costs" (RCW 8.24.030). Routes avoid farm and forest land where possible (RCW 8.24.025).
• Oregon. The owner petitions the county governing body, or the circuit court if the county has handed it jurisdiction (ORS 376.155 to 376.200, 2025 edition). The petition must show no existing easement and no enforceable access to a public road. No way is granted if the owner "could acquire an easement for access to a public road through other legal action," if the land was divided illegally, or if the owner "knowingly eliminated access to all public roads" by selling other land. The way may not exceed 30 feet wide unless the county authorizes more for engineering purposes (ORS 376.180). Any order, including one denying the way, must direct the petitioner to pay the costs and reasonable attorney fees of each owner whose land was subject to the petition. Any order must also direct the petitioner to reimburse the county's costs not already paid (ORS 376.175). If a way is established, the petitioner pays compensation for the land crossed and maintains the way (ORS 376.190). The benefited land cannot later be partitioned without city or county approval (ORS 376.195).
• Florida. Separate from the common-law rule, a statutory way exists for land used or meant 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 in which the landlocked owner has vested easement rights. It can carry utilities as well as people and vehicles (Fla. Stat. 704.01(2)). If the burdened owner objects or demands compensation, either party or the county commission may sue in circuit court to decide whether the claim exists and what compensation is due. The court decides the easement's type, duration, extent and location, and may award attorney's fees and costs to either party for unreasonable refusal; compensation goes to a jury if either party asks in its original pleadings. The easement lasts "so long as such easement is reasonably necessary" and dates "from the time the award is paid" (Fla. Stat. 704.04).
• North Carolina. A cartway proceeding covers land with "no public road or other adequate means of transportation, other than a navigable waterway," used for listed purposes: cultivation, timber, quarries and mines, industrial or manufacturing plants, and cemeteries. The list does not mention homes. If the court finds it "necessary, reasonable and just," a jury of view of three disinterested freeholders lays off a cartway 18 to 30 feet wide and assesses damages, which must be paid with costs before the petitioner gets any rights (G.S. 136-69).
• Texas. An owner with "no public road or other public means of access" may apply under oath to the commissioners court. After notice to the affected owners, the court may declare a public road if it determines that the applicants "do not have access to their real property and premises," and may direct that it remain open "for a width of not less than 15 feet or more than 30 feet on each side of a designated line." A jury assesses damages, and the county pays the costs of the proceeding (Tex. Transp. Code 251.053). The court does not have to act, and Texas A&M AgriLife notes that the Texas Supreme Court struck down a prior version of the statute (Landlocked Property Law in Texas, May 2025).

The pattern: the common-law easement needs a shared history of ownership. The statutes don't, but the neighbor is compensated, and in Oregon the landlocked owner also pays the neighbor's legal fees. Florida's compensation section applies to a statutory way claimed "exclusive of the common-law right."

Easement by necessity vs. prescriptive easement and other easements

Prescriptive easement. This comes from long use, not a split in ownership. In Utah the use must be open, notorious, adverse and continuous "for at least 20 years" (Utah OPRO). Texas requires at least 10 years of open and notorious, continuous, exclusive and adverse use, and permission defeats the claim (AgriLife). An easement by necessity needs no history of use, but it does need common ownership, and it can end when the necessity ends.

Implied easement by prior use. This also needs common ownership, but it rests on a use that existed before the split. Texas requires unity of ownership, a use "open and apparent at the time of severance," continuous use and necessity. Its Supreme Court has said roadway access to a landlocked, previously unified parcel must be claimed as a necessity easement, and that the prior-use doctrine mainly covers lesser improvements "such as utility lines" (Hamrick v. Ward).

Express easement. This is a written grant, created "by a deed or other conveyance" that states "the location and purpose of the easement with reasonable clarity" (Utah OPRO). AgriLife warns that one not recorded in the deed records "is very difficult to enforce against future owners." Our guide to easement vs. right-of-way shows how each appears in recorded documents.

How to get an easement by necessity

Being landlocked does not by itself give a right across a neighbor's land, and a claimed right has to be proved. Utah's ombudsman says "simply claiming an easement right by implication, necessity, or prescription is not sufficient." To formally establish it, the owner needs an agreement with the neighbor or a court action that proves the right (Utah OPRO).

1. Confirm there is no legal access. Order a title search and a survey. A gravel lane or a neighbor's permission is not a recorded right.
2. Trace the chain of title. Find the last owner of both the landlocked parcel and the land between it and the road, and the deed that split them. Did it grant or reserve access?
3. Test necessity then and now. On the date of that deed, did the parcel touch another road or other land of the same owner? Has a road or easement reached it since?
4. Identify the current owner of the other land in the split. Depending on which parcel became landlocked, the claimed easement may cross land the common owner kept or land it conveyed.
5. Negotiate a written easement first. AgriLife calls an express easement "the simplest way." It should be signed by the grantor, identify the property and any limits, and be filed in the county deed records. AgriLife adds that paying the neighbor "may prove a more efficient and cheaper option than pursuing legal action."
6. If that fails, sue. In Texas, an owner who proves the elements can file the judgment in the deed records, "giving legal access" (AgriLife). If common ownership cannot be shown, ask about your state's statutory way of necessity.

We found no published source for a national cost or timeline. AgriLife warns these disputes "could end up in lengthy and expensive litigation."

Buying landlocked land or land with doubtful access

For a buyer or builder, the question is not whether an easement by necessity might exist. It is whether the parcel has recorded access that a title insurer will insure and a lender will accept.

Why a claimed easement by necessity is not insurable access

The standard ALTA owner's policy covers "No right of access to and from the Land" in both the 2006 and 2021 forms (ALTA policy comparison). That is a legal right of access, not a route. Fidelity National Title says that without an access endorsement, "an ALTA policy does not insure a particular means of access" (Fidelity, ALTA 17). Old Republic's comparison of the 2021 ALTA forms marks "actual vehicular and pedestrian access" as covered under the Homeowner's Policy but not the standard owner's policy, subject to policy terms (Old Republic). That form applies only to land improved with an existing one-to-four family residence and to individual or estate-planning insureds, so it is not a vacant-land policy.

When access runs over an easement, an insurer can treat the easement as an additional insured parcel in Schedule A (Agents National Title). The ALTA 17.1 endorsement then covers that "the insured easement gives the property access to an open and publicly maintained street" (Fidelity, ALTA 17.1).

An undeclared easement by necessity usually doesn't get there. Agents National Title's underwriting manual says "an easement by necessity is not insurable without an order of a court of competent jurisdiction granting such an easement." AgriLife notes that title companies "are usually unwilling to insure title to a property that lacks legal access," that loans require title insurance, and that owners usually cannot borrow against landlocked land. Vermont's ruling adds that an unrecorded claim can be lost entirely.

Where access shows up in the deal documents

• Deed. Any easement granted or reserved. Read the severing deed in the chain, not only the current one.
• Title commitment. A benefiting access easement can be insured in Schedule A. Burdening easements appear as Schedule B exceptions. Ask whether the insurer will issue an ALTA 17 or 17.1 endorsement and what it needs first.
• Survey. Under the 2026 ALTA/NSPS standards, the surveyor notes when "no physical access" to an abutting street was observed (Section 6.C.iii). Table A item 18 maps offsite easements. If ordered, Table A item 20 summarizes physical conditions, including access between adjoining parcels for which no written easement documentation was provided to or obtained by the surveyor, without stating a legal opinion. It does not decide whether a legal easement exists. Our ALTA survey guide covers what to order.
• Plat. It may dedicate streets or access easements, or give a lot its own strip to the street, as a flag lot has.
• County road records. Confirm the road is public and who maintains it. A lane may be private, and a street on an old plat may never have been built or accepted.

Worked example: a tract behind a farm

This example is invented to show the method. It describes no real parcel.

A builder is offered 38 acres with no frontage. A gravel lane crosses a 120-acre farm to a county road. The broker says the tract "has an easement by necessity."

• The title commitment shows no access easement in Schedule A. The survey, ordered with item 20, shows the lane crossing the farm and notes that no easement documentation was provided to or obtained by the surveyor.
• One family owned both tracts until 1972, when it sold the farm and kept the 38 acres. The deed reserved no access. That supports common ownership and a severance.
• In 1972 the family also owned a 5-acre lot on another road. If it adjoined the 38 acres, the tract may not have been landlocked at the split. The deeds answer that, not a map.
• A 2015 subdivision next door dedicated a street that stops short of the tract. If it is extended, any necessity could end.

The honest status is "access unresolved." The practical options are to buy a recorded easement from the farm owner before closing, or to make closing depend on access the title insurer will insure. Check scope too. Colorado's Supreme Court allowed that a conveyance's purpose may include "uses the parties reasonably might have expected based on normal development," but found no sign the parties in 1938 contemplated residential development (Thompson v. Whinnery). A farm lane may not serve a subdivision.

What to check before an offer

1. Does the deed or title commitment show a recorded access easement benefiting the parcel?
2. Will the title insurer insure access and issue an ALTA 17 or 17.1 endorsement?
3. Does the survey show physical access, or access used without a recorded easement?
4. Is the road public and maintained, according to the county?
5. If access rests on an unrecorded claim, who owned the land at the split, and was the parcel landlocked then?
6. Is the easement wide enough, and broad enough in scope, for the planned use, including utilities?

Our road frontage vs. legal access checklist gives a worksheet for each route.

Where Pillar fits

Pillar's property search shows parcel boundaries with roads and, where available, the owner of record and mailing address. That helps you see whether a parcel touches a road and who owns the land in between. It does not show unrecorded rights or decide legal access.

Quick answers

Does an easement by necessity need to be in writing? No. Courts imply it from the circumstances of the deed that split the land. If a neighbor disputes it, an agreement or a court proceeding may be needed to establish that it exists and how far it reaches, and at least one title underwriter will not insure one without a court order.

Can an easement by necessity be terminated? Yes. It generally ends when the necessity ends, such as when a public road reaches the parcel. Merger of the two parcels can also end it.

What is the difference between an easement by necessity and a prescriptive easement? A necessity easement comes from a split in common ownership. A prescriptive easement comes from years of use without permission: 20 in Utah, 10 in Texas.

Can a neighbor block access to a landlocked property? It depends on what rights already exist. Being landlocked alone does not establish a right across a neighbor's land; AgriLife says Texas has "no automatic right to access landlocked property." Whether a neighbor may block a route depends on existing easements and state law, and if the right is disputed, an agreement or court proceeding may be needed to establish it.

Who pays for a way of necessity? Under the statutes in Washington, Oregon, Florida and North Carolina, the burdened owner is compensated. Oregon also makes the petitioner pay the neighbor's legal fees. In Texas, the county pays the proceeding's costs.

Can you get title insurance on landlocked land? Often not with insured access. AgriLife says title companies are usually unwilling to insure land without legal access, and at least one underwriter requires a court order before insuring an easement by necessity.