Most courts granted an easement by necessity when an owner severs its land and leaves a parcel without access to a public road. The easement allows passage over land that had been connected to the landlocked parcel before it became landlocked. The courts differ on whether this is a mandatory rule of law (owners are not allowed to create land to which there is no access) or a default rule based on the implied intent of the parties, in which case the courts will allow a parcel to be landlocked if that is what the parties bargained for. The argument for a mandatory rule is that land has no use if the owner cannot get to it and no one will buy a landlocked parcel, making the land inalienable. The argument for a default rule is that the owner of the landlocked parcel can always give or sell it to a neighbor or a buyer could buy both the landlocked parcel and the land next to it that adjoins a public way and for that reason, there is no warrant to create a mandatory rule that limits the party’s contractual freedom.

In Acorn Dev. LLC v. Sanson Co., 2022 WL 2979808 (Ohio Ct. App. 2022, the court chose the latter approach, holding that an easement contained in a 90 year lease terminated when the lease ended. The issue is complicated by the fact that the express easement was in a lease to the city of part of the landlord’s land. The landlord subsequently sold the land being rented by the tenant and the new owner took the property subject to the 90 year lease.

Once the lease was over, the servient owner claimed that it had never expressly agreed to an easement over its land and that an easement by necessity was inappropriate when the parties had created an express easement that had a time limit.

The court notes that the dominant estate owner claimed that it had an easement implied from prior use, but the court found that such an easement cannot coexist with an express easement. Prior use of part of land for the benefit of another part of the land may result in an implied easement when the lots are terminated on the assumption that the parties would want the use to continue if it is necessary to enjoyment of the dominant estate. Because the dominant estate owner rested its case on events that occurred at the beginning of the lease rather than at its end, the court refused to consider whether the landlocked parcel owner had an easement by necessity. It seems odd to penalize the owner for framing the issue this way when the result is a parcel that is landlocked and we have no evidence the parties intended that to be the case.