Brandywine, MD asked in Real Estate Law for Maryland

Q: When 2 adjoining lots that has rights to a section of common easement to the second lot; does the 1st lot cont to use ?

If an owner of 2 lots with the rights to use a sec of a common easement that leads to the second lot and is a need I necessity easement for lot 2. The owner of lots 1&2 sales lot2; does lot 1 get to continue to use that section of the common easement if there is no longer a need for lot one to use it

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1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Rockville, MD
  • Licensed in Maryland

A: Your question is confusing the way you phrased it. Let me rephrase it how I think you intended it: Seller owns two lots. Lot 2 is landlocked with no route of access except over Lot 1. Seller sells Lot 2, but continues to own Lot 1 and continues to use the portion of Lot 1 over which the easement leading to Lot 2 is located.

By law, an easement by necessity is imposed over Lot 1 in favor of Lot 2 in order to allow access to the landlocked Lot 2. The easemement is for the benefit of Lot 2, not Lot 1. The land under the easement remains part of Lot 1, so the owner of Lot 1 is free to use it since it as part of their land; however, the owner of Lot 1 cannot use or obstruct the easement in a way that diminishes Lot 2 owner's reasonable and free use of the easement to access their land. The owner of Lot 1 has no easement or right of use over any part of Lot 2 after selling it to the new owner.

Mr. Valkenet has provided an excellent and accurate description of the differences and effects of recording the easement in the land records versus an unrecorded easement of necessity imposed by law. If between these two answers you are not satisfied that your question is resolved, then you should consult a lawyer who can sort out exactly what the issue is that has you concerned.

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