There is a conspiracy of carelessness in New Hampshire, and it is costing people money. Property owners throw around the term “land-locked” thinking their land has no access. What most of them do not realize is that while their land may have no written access, either by deed, easement or court decree, it probably has actual access. In fact, land with no access is largely a myth. More often than not, research can establish a strong case for an implied easement which, when decreed by a court, creates access to the once “land-locked” parcel.
In a long line of cases, New Hampshire courts presume a person subdividing land does not intend to create a back parcel with no access and, thus, little value. This presumption gives rise to easements by necessity, a type of implied easement. “It is reasonable to suppose that the grantee bought the land for some useful purpose, and if he cannot enjoy the beneficial use of it except by means of a way over the adjoining land of the grantor, it is but reasonable and just to find that he acquired such a way. The same reasoning applies when a grantor retains land which he cannot use without crossing the land conveyed. A way of necessity is reserved to him in the grantee’s land.”
Easements by necessity arise from the implied intent of the parties, but necessity alone is insufficient to create an easement. Rather, the surrounding circumstances must be examined to determine whether they will support the conclusion that the parties intended to create an easement. The circumstances surrounding the transaction are controlling and they must be such as to raise a reasonable implication of right granted.
I suggest a three-step analysis. The first step is to search the title back to the original subdivision creating the back lot. There must be unity of ownership of both the “dominant” estate (the land benefited by the easement) and the “servient” estate (the land burdened by the easement). Someone can create an easement only over land he or she owns. If a parcel loses access at some later date through eminent domain or other method, the owner may not assert an implied access easement over someone else’s land.
The second step is to see if the landowner created a back parcel with no express access. If so, then the back parcel is an excellent candidate to be benefited by an easement by necessity over the front parcel.
The third step is to look for evidence showing the landowner considered access in some manner without expressly creating access. Reference to access, even poor or ineffective access, demonstrates the landowner considered the topic and intended to do whatever he or she did, and an implied easement probably does not exist. It is difficult to conclude a landowner intended to do one thing while expressly doing something else.
When is a parcel truly land-locked? If a subdivider merely addresses access in the deed or other instrument, even if the access is poor or ineffective, a court likely will not conclude the parties intended to create an easement elsewhere. For example, where a conveyance includes a right of way to a limited access highway without the grantee having the right to access the highway, no easement by necessity exists. The reason is the express grant of access to the limited access highway, however useless, precluded the implication of an easement by necessity in some other location. It certainly would have been more convenient had there been access other than to a limited access highway, but that was not the parties’ agreement. Mere convenience is not enough to establish an easement by necessity. In this scenario, a land-locked parcel exists with little hope of establishing an easement through judicial process.
If your three-step analysis establishes the landowner did not address access, you have a strong argument for an easement by necessity. Once you establish your access potential, the width of the implied access easement is less clear. If not specified, the test of an appropriate width is what is reasonable for suitable and convenient use of the way for its ordinary and intended purpose. Most zoning ordinances require fifty-foot roads. One certainly can make the argument an implied easement should be fifty feet wide. If the easement does not satisfy zoning, then the landowner cannot pull a building permit, and if the landowner cannot build anything, then what value does the land have?
Another wrinkle is the extent of the access. Can the back lot be subdivided? How about heavy commercial versus residential use? A New Hampshire court probably would apply reasonableness by balancing the benefit to the owner of the dominant estate against the burden to the owner of the servient estate. The other analysis a court will make is whether the proposed change or increase in use is so substantial as to constitute a new easement altogether.
Keep in mind only a court order or written conveyance can establish access rights conclusively. No matter how strong, the facts only form the basis for a claim of access. Absent an agreement with the other landowner, a property owner will need to file a petition to quiet title.
So when someone describes real estate as “land-locked,” do not assume the land has no access. Instead, assume the land does have access, but the access simply has not been expressed in a deed, easement or court decree. Actual access likely is there, patiently waiting for someone to take notice and unlock it.