When, as a result of the division and sale of commonly owned land, a parcel is left entirely without reasonably practical access to a public road or utilities, a title examiner may rely on a court’s final order establishing that the grantee of the landlocked parcel is entitled to an either an easement by necessity or an easement by implication over the remaining lands of the common grantor or his successors in title where access is essential or necessary to the enjoyment of the landlocked land.
Comment 1. For the principles behind the Standard see Berge v. State, 181 Vt. 1, 2006 VT 116 (2006).
Comment 2. The requirements for an easement by necessity are: (1) division of commonly owned land; and (2) the division creates a landlocked parcel. Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 206 (2000). The easement remains in effect so long as the necessity exists.
Comment 3. The requirements for an easement by implication are: (1) division of commonly owned land; and, (2) the division creates a landlocked parcel; and (3) the common grantor alters the land in a way that imposed a burden on a portion of the property to benefit a different portion of the property; (4) the common grantor used the altered land for a sufficient time to imply the alteration was permanent; and (5) that there is no other reasonable way to enjoy the benefitted property without the easement. Read v. Webster, 95 Vt. 239 (1921).
An easement by implication is derived from the intention of the parties drawn from the instruments executed at the time the property was subdivided, combined with the physical condition of the property at the time of its division and the knowledge which the parties had or may be charged with, implying that an easement was intended to be created by grant or by reservation. Wheeler v. Taylor, 114 Vt. 33 (1944).
The common factor in many cases regarding an easement by implication is the existence of improvements in use at the time of the division that would imply the existence of rights that would be appurtenant to the divided parcels. An easement by implication can be created by grant (reasonable necessity is a requirement) or by reservation (strict necessity is a requirement). See, Read v. Webster, 95 Vt. 239 (1921); Wheeler v. Taylor, 114 Vt. 33 (1944).
Comment 4. An implied easement by necessity for utilities may arise by operation of law where it is essential to the reasonable enjoyment of the land and there is an easement for access. Regan v. Pomerleau, 107 A.3d 327, 338 (Vt. 2014).
Comment 5. A way of necessity is not granted. It is a fiction of law that arises only in the absence of a deeded right of access to the landlocked parcel. Where the existence of an easement by necessity is not clearly observable by physical evidence of its use, the easement is extinguished by Vermont’s Marketable Record Title Act. Gray v. Treder, et al., 2018 VT 137.
History
September 2020 – Standard Added
