Extinguish Easements by Adverse Use

By Alan R. Romero

The servient owner can extinguish an easement on her land by adversely using it for the same period of time required for adverse possession or a prescriptive easement. The servient owner must satisfy these basic elements:

  • Open and notorious use: The servient owner must use the property subject to the easement in a way that’s open and reasonably discoverable by the dominant tenant.

  • Adverse use: The servient owner’s use must be inconsistent with the rights of the dominant tenant. Because the servient owner has the right to use the servient land in any way that doesn’t unreasonably interfere with the use of the easement, even very substantial uses by the servient owner may not be adverse.

    To be adverse, the servient owner must use the servient land in a way that unreasonably interferes with the dominant owner’s use of the easement.

  • Continuous and uninterrupted use: If the dominant owner successfully interrupts the servient owner’s adverse use, the easement won’t be extinguished by adverse use.

  • Exclusive use: The servient owner must use the servient land exclusive of the dominant tenant in order to extinguish an easement. That’s because an easement holder doesn’t have the right to exclude the servient owner, but a title owner does have the right to exclude a trespasser.

    So in order to extinguish the dominant tenant’s rights and make her a trespasser, the servient owner must exclude her from using the easement. Merely sharing use with the dominant tenant isn’t enough.

  • For the limitations period: The same limitations period that applies to adverse possession and prescriptive easement claims also applies to extinguishing easements by adverse use.