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 easement by necessity 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 and the easement by necessity is not terminated by the application of the Marketable Record Title Act. See, Gray v. Tredor, et al., 2018 VT 137.
Comment 3. 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 4. 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. Tredor, et al., 2018 VT 137.
September 2020 – Standard Added