Ways to Terminate Easements - dummies

Ways to Terminate Easements

By Alan R. Romero

An easement is permanent unless the parties agree otherwise. But the parties certainly can agree that an easement will terminate at some point, whether at a specific time or when certain conditions occur.

Here are some examples of how easements may expire:

  • An easement agreement may say the easement lasts for a specific time period or for the lifetime of the easement holder.

  • An easement agreement may say the easement lasts only as long as it’s used for a specific purpose, such as for a railroad. If the easement agreement specifies a purpose for the easement, the easement ends when that purpose can no longer be served, even if the easement agreement doesn’t say so.

    For example, a grant of an easement for access to a specific public road ends if the public road is closed.

  • An easement in a building or a structure ends when the building or structure is destroyed.

  • An easement that benefits or burdens less than a fee simple estate ends when the relevant estate ends.

  • A personal easement in gross ends when the dominant owner dies.

Even if an easement is permanent and will never naturally expire, the owner of the easement may terminate the easement in a variety of ways.

Terminating easements by express release or agreement

You can expressly terminate an easement just like you can expressly create one. The dominant owner can release the easement by deed, thereby extinguishing it. Or the dominant owner can transfer the easement by deed to the servient owner. As soon as the same person owns both the easement and the servient land, the two merge because you can’t have an easement on your own land.

Ending easements by merging dominant and servient estates

If the same person acquires the dominant and servient estates, the easement merges with the servient estate and ends. That’s true even if the parties don’t expressly intend for merger to extinguish the easement, because you can’t have an easement over your own land.

Courts generally agree that after merger terminates an easement, the easement doesn’t revive if the servient and dominant estates are later owned separately again.

Abandoning easements

Even though the owner of title to real property can’t simply abandon ownership, the owner of an easement can terminate his easement by abandoning it. Unlike with abandoned chattels, an abandoned easement doesn’t continue to exist, waiting for someone else to find and take possession of it. It simply ends.

Successfully claiming an easement was abandoned requires proving that the easement holder has

  • Stopped using the easement

  • Clearly indicated that he intends to give up ownership of the easement

Like an owner of title to real property, the owner of an easement doesn’t have a duty to use his property interest. He can let it sit unused as long as he wants, and whenever he decides to, he can make use of it again.

So an easement holder abandons an easement only if he indicates not only that he isn’t going to use it now but that he doesn’t want to keep it for possible use in the future.

Here are some examples of how an easement holder can clearly indicate his intent to abandon the easement:

  • The easement holder takes actions that prevent use of the easement in the future. If a railroad owns an easement for railway use and removes all the railroad tracks from the easement, the railroad’s actions may sufficiently indicate intent to abandon the easement. Or if an easement holder blocks off his access to the easement by building a structure, he indicates that he intends to abandon the easement.

  • The easement holder doesn’t object to obstructions of the easement by the servient owner for a substantial period of time. However, in some cases, even such acquiescence might not clearly indicate intent to abandon an easement.

    For example, if the easement holder had two access easements to his property, his failure to object to obstruction of one of the easements might not indicate intent to abandon but simply that he didn’t need to use that easement during that time.

  • The easement holder acquires and uses a new easement that serves the same purpose. In some cases, this has supported the court’s finding that the easement holder showed that he didn’t intend to use the old easement anymore.

  • The easement becomes unusable because the easement holder has failed to maintain, repair, and keep it clear.

Express statements of intention to abandon are probably not enough to establish abandonment. Such expressions can help to interpret the easement holder’s actions, but most courts agree that the easement holder must take some action evidencing abandonment, not merely express the intent to do so.