Usually ONLY in cases of landlocked land Finn v. Williams (Illinois) – Facts refuses to permit the to travel through their land as Δ Π they had been doing in the past because the land was Π’s landlocked Issue Do the have a right to use the land as a right of way Π’s Δ’s in order to be able to get to a highway without walking? Holding + Reasoning Court grants an easement by necessity An implied easement by necessity may lie dormant if it is written down or intended to be given when the land first changed owners Do not want land to become useless even though the costs are on the Δ Possibly better for the legislature to require the land-locked owner to apply to a public entity and pay for the easement However, unfair bargaining can occur because the really needs the easement Π and can charge whatever he wants Δ Easement by necessity does NOT require that there have been an actual prior use before severance Intent of the Grantor (****IMPORTANT****) Most courts agree that no easement of necessity will be recognized if it is clear that the grantor intended to sell, and the grantee knew she was buying a landlocked parcel. Other courts disregard the intent of the grantor and will allow for an easement by necessity even if the buyer knew his parcel was landlocked, in order to promote the development of property ***RULES*** Where an owner conveys a portion of his land which had no outlet except over the land of grantor or strangers, an easement by necessity exists over the retained land of the grantor. Implied Easements DO NOT have to be in writing Will either be implied from prior use or necessity Implied by Prior Use v. Implied by Necessity By Necessity Must be One tract/piece of land before conveyance You MUST really need the easement Not given if it would simply make your life easier No prior use necessary
Usually ONLY in cases of landlocked land Finn v. Williams – (Illinois) Facts Δ refuses to permit the Π to travel through their land as they had been doing in the past because the Π’s land was landlocked Issue Do the Π’s have a right to use the Δ’s land as a right of way in order to be able to get to a highway without walking? Holding + Reasoning Court grants an easement by necessity An implied easement by necessity may lie dormant if it is written down or intended to be given when the land first changed owners Do not want land to become useless even though the costs are on the Δ Possibly better for the legislature to require the land-locked owner to apply to a public entity and pay for the easement However, unfair bargaining can occur because the Π really needs the easement and Δ can charge whatever he wants Easement by necessity does NOT require that there have been an actual prior use before severance Intent of the Grantor (****IMPORTANT****) Most courts agree that no easement of necessity will be recognized if it is clear that the grantor intended to sell, and the grantee knew she was buying a landlocked parcel. Other courts disregard the intent of the grantor and will allow for an easement by necessity even if the buyer knew his parcel was landlocked, in order to promote the development of property ***RULES*** Where an owner conveys a portion of his land which had no outlet except over the land of grantor or strangers, an easement by necessity exists over the retained land of the grantor. Implied Easements DO NOT have to be in writing Will either be implied from prior use or necessity Implied by Prior Use v. Implied by Necessity By Necessity Must be One tract/piece of land before conveyance You MUST really need the easement Not given if it would simply make your life easier No prior use necessary
Property%20-%20Overton%20-%20Spring%202011.docx