Easement by Necessity as a Cause of Action in New York

An easement by necessity is a legal right that allows someone to access their property through a neighbor’s land when no other access exists. In New York, this type of easement is not automatically granted just because it would be convenient. The law sets out strict conditions that must be met. If those conditions are proven, the court may recognize an easement to ensure the property can be reasonably used.

Former Common Ownership

The first element is that the two parcels of land—one currently landlocked and one providing access—must have originally been owned by the same person or entity. This is known as “former common ownership.” The legal theory is that when the owner divided the land, they should not be allowed to cut off access that was once available as a single piece of property. If there was no shared ownership in the past, then an easement by necessity cannot be established.

Absolute Necessity at the Time of Severance

The second requirement is that the need for access must have existed when the land was divided into separate pieces. This means that at the moment the two parcels were split, one of them became landlocked or inaccessible without crossing the other. It is not enough to claim that access is now difficult or inconvenient. The necessity must have been absolute—meaning no other legal access—when the property was first severed. If alternative routes existed at that time, this element is not satisfied.

The Necessity Must Continue

Finally, the absolute need for the easement must still exist today. If the owner of the landlocked parcel later creates a new access point through a different property, or if a public road is built nearby, the claim for easement by necessity can be denied. The law only recognizes this right as long as the necessity remains.

Conclusion

An easement by necessity in New York is not granted lightly. The person seeking the easement must show that the land was once part of a larger commonly owned parcel, that the necessity for access existed at the time the land was divided, and that the need continues today. Courts use these strict standards to ensure the fairness and stability of property rights. Without meeting all three elements, a claim for easement by necessity will likely fail. But when proven, it allows property owners to access their land in a way that reflects the original intent and fairness under the law.

Find the Law

“The elements of easement by necessity are: former common ownership, absolute necessity for the easement at the time of severance, and that the absolute necessity must continue. It is not enough to show common ownership, the necessity for the easement must exist at the time ownership of the lots is separated. US Cablevision Corp. v. Theodoreu, 192 AD2d 835, 596 NYS2d 485 (3rd Dept. 1993).” Hossain v. a to Z Props., 2006 N.Y. Slip Op. 51989 (N.Y. Sup. Ct. 2006).