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Easements of necessity

What happens when a buyer purchases real estate that is landlocked? What if there is no way to get to the property without crossing land owned by another party? The answer is to ask for an easement. An easement is an agreement between two landowners that allows the one owner to cross the other's property for limited purposes.

But what if the other landowner refuses to agree to the easement?

Some states have dealt with this issue by creating a legal concept they call "easements of necessity." The legislatures of these states have created laws that allow a landowner to use eminent domain to create an easement to access landlocked property. Massachusetts is not one of these states.

Without legislation to guide them, Massachusetts courts have created their own way to deal with the issue of the landlocked property owner. Over the centuries, Massachusetts courts have developed case law that allows an "implied easement" to exist in certain situations.

In contrast with easements of necessity, which are created because landowners need them, Massachusetts courts will find an implied easement only if they conclude that an easement was the intent of the owners in the past.

For example, imagine a large parcel of land with a house at one end and a guest house at the other. The owner passes away, leaving the main house to her children and the guest house to her brother. Years later, the brother has passed away and his children have sold the guest house. The original owner's children sell the main house and land to a new owner who knows nothing about the guest house's relationship to the larger property. Meanwhile, new developments have blocked the way to the guest house on all other sides. In this case, a Massachusetts court may conclude that an implied easement exists because it reflects the intent of the owners when they first conveyed the property.

This kind of situation may not come up often in an urban environment, but it's not entirely uncommon in rural areas. Landowners should talk to experienced real estate attorneys whenever they have questions about easements.

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