Easement by Necessity

What Is an Easement by Necessity?

An easement by necessity is a right of access implied by law when a property has no other way to reach a public road. Unlike an easement appurtenant created by a written agreement, an easement by necessity is created by court order based on the principle that no property should be rendered useless due to lack of access.

Florida Legal Requirements

Florida recognizes easements by necessity under common law and Section 704.01, Florida Statutes. To establish an easement by necessity, the claimant must prove:

1. Common ownership — The landlocked parcel and the surrounding parcel were once owned by the same person or entity.
2. Severance — The common ownership was divided (by sale, gift, or devise), creating a separate landlocked parcel.
3. Necessity — At the time of severance, access to a public road was necessary, and no other reasonable access exists.

The necessity must have existed at the time the properties were separated. If the property had access at the time of severance and lost it later (due to a road closure, for example), the common law elements may not be met. However, Section 704.01(2) provides a statutory easement by necessity that does not require common ownership, applying when the property is actually landlocked regardless of the ownership history.

Scope and Location

The court determines the easement's location and scope based on reasonable necessity. The easement provides only the access necessary to use the landlocked property; it does not give the owner unlimited rights to cross the neighbor's land. The location is typically the route that causes the least damage to the servient estate while providing practical access.

Related Terms

• Easement Appurtenant — Created by agreement, not necessity
• Easement by Prescription — Created by long-term unauthorized use
• Access Easement — General term for road/driveway access
• Survey — Shows easement location

Barnes Walker Easement Services

Barnes Walker's real estate attorneys establish and defend easements by necessity throughout Southwest Florida. Request a legal inquiry for assistance.

Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC