In a surprising decision, the Vermont Supreme Court held that an easement by necessity must be recorded or it will be lost by operation of the state’s marketable title act. Gray v. Treder, 2018 VT 137, 204 A.3d 1117 (Vt. 2018). The facts of the case were unusual, however, because the easement in this case was not clearly visible by physical evidence of its use. That will ordinarily not be the case because easements by necessity are required to obtain access to the land and most owners will visibly use those easements to obtain access. In this case, however, because the landlocked ninety-acre parcel had remained undeveloped for the period defined by the Marketable Title Act. The court’s ruling was based on its interpretation of the statute and because it was bound by that statutory language. In addition, the statute provided the landlocked owner a method to preserve an easement by necessity (through recording it) and the owner failed to take the steps that would have preserved the easement.
The rule applied in this case leaves the parcel landlocked and thus inaccessible. The court “recognize[d] that the result of [its] analysis undermines the public policy against the inaccessibility of land.” But, the court noted, “this policy is itself in tension with respect for private property rights.” The landlocked parcel could of course be sold to one of the owners of one of the contiguous lots or to a buyer who consolidated the landlocked parcel with one of the lots that does have access to a road.