Termination of Easements
Merger of Title:
Although easements generally last forever, there are several ways an easement can terminate. If the easement terminates before the original time period that it was supposed to last for runs out, the easement is said to be “extinguished.”
The simplest way an easement can terminate is if the time period for the easement’s existence expires. In such a case, the easement would have to have a time limit that was set at the time that the easement was created. When that time limit runs out, the easement simply expires and ceases to exist. In addition, an easement can be created with the express provision that it shall terminate upon the occurrence of a specified event. When that event occurs, the easement will automatically expire. For example:
George conveys an easement to Bill that allows Bill to park his car on Whitehouseacre until a Democrat gets elected President of the Unites States. In 2012, Hillary, a Democrat from New York (of course…), gets elected President. Bill’s easement expires automatically at that time.
Merger of Title
An easement appurtenant is automatically extinguished if, at any point, the same person comes to own the dominant tenement and the servient tenement at the same time. Even if the ownership is later split along the same borders of the original properties, the original easement is extinguished. For example:
Steve owns property that is between Debra’s house and Main Street. At one point, Steve grants Debra an easement to walk over the path outlined in blue. Later, Debra is thinking of building a multi family dwelling on and around her property. So, she buys Steve’s property. Unfortunately, Debra finds out that the city zoning codes do not allow the building of multi-family housing in that area. Therefore, she puts Steve’s original property back on the market and eventually sells that property to Joe. She does not any longer have an easement to walk across the blue path. As soon as she bought Steve’s property, her easement was extinguished because the ownership of the two parcels merged. Of course, she can re-acquire that easement from Joe if Joe agrees to give it to her, but her easement from the days that Steve owned the property is gone forever. Incidentally, the result would be the same even if Debra re-sold the property back to Steve. As soon as Debra acquired both parcels, her easement was extinguished forever, regardless of what happened to the property afterward.
Release or Abandonment by the Easement Holder
An easement can be extinguished if the easement holder releases the easement. This release can be done on the holder’s own accord or as part of a deal with the owner of the servient tenement. Just as the creation of an easement must be in writing because of the Statute of Frauds (if the term of the easement is more than one year), the termination of an easement also must be in writing.
In addition, the easement can be extinguished if the easement holder abandons the easement. An easement is considered to be abandoned by the holder if the holder does something that shows a clear intent to stop using the easement permanently. However, non-use alone is not enough to be considered abandonment. For example:
Steve owns property that is between Debra’s house and Main Street. At one point, Steve grants Debra an easement to walk over a path through Steve’s land to Main Street (see previous diagram). One day Debra stops using the path and does not use it for a year. The easement is not extinguished because non-use is not an action that clearly shows intent to abandon the easement. However, if Debra were to build a wall on her own property that would block access to the path from her property, that would probably be enough of an action to constitute abandonment.
Note that once an easement has been terminated by release or abandonment, it is gone. An easement cannot be brought back simply by the former holder changing his or her mind. Reinstating the easement would take a brand new creation of the easement.
Cessation of the Purpose of the Easement
This method of extinguishments is confined to easements that are created by necessity. If an easement is created by necessity and the necessity ends, for whatever reason, then the easement ends along with the necessity. For example:
Sally owns property that is surrounded on three
sides by road and on the fourth side by rocky terrain that is unsuitable
for driving or walking on. Sally sells an interior part of her property
that is surrounded on three sides by her property, and on the fourth
by the rocky terrain, to Don. The deed mentions nothing about Don getting
an easement to cross Sally’s property.
Destruction of the Servient Tenement
If the part of the servient estate that the easement applies to is destroyed, the easement will be extinguished. Of course, this scenario will generally only manifest itself in situations where the easement calls for the usage of certain facilities (e.g. power lines that run through the servient estate) and those facilities are destroyed. If the easement merely allows the easement holder to cross over the servient estate (or to run power lines through the servient estate etc.), then it is hard to envision a scenario in which the easement could be extinguished because such destruction will not usually impact the ability to cross over the servient estate.
Even where applicable, an easement can only be extinguished in this manner if the servient estate is destroyed through no fault of the servient estate’s owner. If the servient estate owner intentionally destroys the subject of the easement, the owner of the servient estate will be liable to pay damages to the easement holder and the easement will not be extinguished. For example:
Adam and Brent are neighbors. Adam builds a large swimming pool in his backyard. He and Brent negotiate a deal whereby Brent will gain an easement that will allow him to swim in Adam’s pool any time he wants to. One day, an accidental fire destroys the swimming pool. In such a case, Brent’s easement will be extinguished. However, if Adam intentionally destroyed the pool, he will have to pay Brent damages for the loss that Brent suffered by being deprived of the ability to swim in the pool. In addition, Brent’s easement will not be extinguished. Therefore, when and if the pool is rebuilt, Brent’s easement will continue where it left off before the pool was destroyed.
Just as an easement can be created by prescription (adverse possession), an easement can also be terminated by prescription if the owner of the servient tenement excludes the easement holder from the usage of the easement for the prescribed statutory period of time. For example:
Adam and Brent are neighbors. Brent holds an easement that allows him to cut through Adam’s property to access a street. One day, Adam builds a wall between Brent’s property and the path over which Brent is supposed to be allowed to cross, thereby denying Brent access to the path. If this wall stays up for the statutory period of time and Brent brings no legal action to enforce his easement, his easement could be lost by prescription.
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