Easements All in a Row

In my childhood house, there was a pathway that ran through the neighbor’s backyard, continued through our backyard, and ended in the communal alley at the end of our row of houses. Issues often arose over the communal uses of these pathways to bring items out to the alley, requiring that neighbors trek through each other’s backyards. These issues most often resulted from discontent over the lack of privacy in one’s own backyard when neighbors traipse through, especially during the summer months when people are more active outside.

Properties that are cut off entirely from streets are ripe grounds for these communal pathways to allow access, but what happens when only part of your property is disconnected from the street? Anyone living in an old row house in Old Town, Alexandria, Virginia, knows how lucky you are if you have a backyard. If you don’t live in one of the houses at the end of the row, you would be even luckier if you have access to your neighbors’ backyards to be able to take out your trash. The row houses in Old Town have gone through many changes and iterations throughout their time, but there persists a consistent problem of accessing the backyards of the homes. Some are fortunate to have paths run down the side of their house connecting the front to the back, but some rely on well-established paths running through the backyards of all the neighbors to roll out trash cans, store bikes, bring gardening supplies, and perform many other outside activities without having to trek through their house.

To best understand the rights of the row-house owners and the impacts of neighbor trekking through their backyard has on the enjoyment of their land, it is useful to look at the case Thomas v. Primus. This case addresses a parcel of land that was split up, leaving one parcel without any access to the road. After the parcel was subdivided, an easement by necessity was granted that allowed the landlocked property the ability to access the nearby road. The case outlines two elements for creating easements by necessity. First, an easement by necessity is created when a parcel of land becomes landlocked or incapable of being used reasonably without an easement to access a common road. These easements are necessary when “a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor,” effectively blocking the grantee from any outside access. Second, just because a landowner has another method of accessing their land from the street, they are still entitled to an easement for their use and enjoyment. Easements hinge on the idea that the “easement is reasonably necessary for the use and enjoyment of the party’s property”; it is enough to need a pathway that does not directly impact the use of the property.

These elements are useful when looking at the easements running behind the row houses in Old Town and determining if they are easements by necessity. The first element states that a conveyance of land by the grantor, which isolates the grantee unless they pass over the grantor’s land, creates an easement by necessity. Second, despite other access points, an easement by necessity still exists if other methods reasonably impact the property owner’s use and enjoyment of their land. First, though the houses themselves are not landlocked from the road, their backyards are inaccessible for household necessities like taking out the trash. The backyards themselves are landlocked, and as the first element outlines, accessing the street requires walking over the lands of neighbors, fulfilling the need to create an easement by necessity. Second, the landowners do have a method of going through their homes to access the backyard, but that would infringe on the use and enjoyment of their homes. These activities range from dragging trash cans, bikes, or other outdoor equipment through their homes, which is not an ideal path for items like these. Dragging items through a home reasonably creates a necessity for a different solution to accessing roads or alleys.

The easement by necessity doctrine properly explains the lasting easements behind these row houses in Old Town. Though homeowners may be disgruntled with the reality of their neighbors traipsing through their backyards, there is a clear legal rationale for these easements. Living in old homes creates unique challenges, and easements by necessity help to preserve the functionality of these homes and the use and enjoyment of the land. These row homes in Alexandria are prime real estate on the housing market, especially for young families with kids, due to the great school districts. This demographic of family especially relies on the use of these easements to prevent the general havoc of children running through homes to ride bikes or play out front. Furthermore, these old homes are protected by city ordinances, and changing layouts or adding to the homes requires city approval, a long and arduous process. Finally, these easements create a closer community environment, forcing interactions and good relationships with the neighbors walking through each yard. The easement by necessity doctrine recognizes that challenges are posed when interacting with neighbors, while respecting the challenges in living with landlocked properties.

Shannon Ayres is a law student at the American University Washington College of Law.

Image: Erol Ahmed, Row Houses in Washington D.C. (Unsplash).