How to Get Rid of Real Estate Easements
- Quiet the Title. Sometimes properties have easements that were instituted many years ago, and in this case, legal action can be initiated to "quiet the title" and remove some easements.
- Allow the Purpose for the Easement to Expire. Although most easements "run with the land" or pass forward to new owners of the involved properties, circumstances such as these can ...
- Abandon the Easement. An easement can also cease to exist because it's unable to be used any longer. ...
- Stop Using a Prescriptive Easement. A prescriptive easement is the result of a somewhat complicated legal concept known as adverse possession.
- Destroy the Reason for the Easement. In the case of an easement created for a party wall — a wall on the property line that serves both properties — the ...
- Merge the Dominant and Servient Properties. Sometimes adjacent properties have an easement between them, allowing one or both parties access to the other.
- Execute a Release Agreement. If an easement exists and the new owners of both properties find that it's no longer of interest or use to the dominant property owner, the ...
How do you terminate an easement on a property?
Execute a Release Agreement. If an easement exists and the new owners of both properties find that it's no longer of interest or use to the dominant property owner, the easement can be terminated by the dominant property owner signing a release document to the servient property owner.
How do you extinguish an easement by prescription?
You not only can obtain an easement by prescription, you can have it extinguished by prescription as well. An easement is extinguished by prescription if the owner of the servient estate or someone else uses property subject to the easement in a way that is not consistent with the use of the easement.
Can a conservation easement be extinguished?
Conservation easements usually remain active and permanent to protect the land no matter what the property owner does. Extinguishing permanent easements is difficult and may require a lawyer to both research the matter and take it to a court. Some agreements between the landowner and the business owner will have an express expiration date.
How do you create an easement on a property?
Easements can be created in four ways: express grant in writing, implication from prior use, implication from necessity, and prescription. When the dominant estate is transferred, the easement passes to the subsequent owner through appurtenance clauses even if there is no specific mention of the easement in the deed.
Is an easement extinguished when the easement and the servient tenement become owned by the same person?
You can Extinguish an Easement When the Following Occur: This is because a person cannot have an easement on his own land. For that reason, when the same person becomes the owner of both the servient tenement and dominant tenement, the easement is generally extinguished.
Is a long period of nonuse sufficient to terminate an easement?
Yes, a long period of nonuse is sufficient to terminate an easement if it is accompanied by other evidence of intent to abandon the easement (e.g., the easement holder erects a permanent structure blocking off the easement).
Can legal easements be extinguished?
Although an easement can arise in a variety of ways, any easement can be extinguished by the easement's abandonment by the owner of the dominant estate.
How is easements extinguished suspended and revoked?
An easement is extinguished when the servient owner, in exercise of a power reserved in this behalf, revokes the easement. If the servient owner at the time of granting an easement reserves the power of revoking it then by the exercise of such power he can extinguish the easement.
How are easements created?
Easements can be created in four ways: express grant in writing, implication from prior use, implication from necessity, and prescription. When the dominant estate is transferred, the easement passes to the subsequent owner through appurtenance clauses even if there is no specific mention of the easement in the deed.
What did the court find when plaintiff demolished its building?
The court found that when plaintiff demolished its building, it put an end to the necessity of support on its side of the wall. Defendant put a definitive end to the easement when it demolished its entire building and put an end to the necessity of the support on its side of the wall.
What happens when a new means of access becomes available and the original necessity perishes?
But when a new means of access becomes available and the original necessity perishes, the landowner loses its right of access.
Can a government create an easement?
A government can create an easement by way of condemnation. However, Strnad v. Brudnicki notes that a governmental agency can also abolish an easement by condemning it. 12 This could take a number of forms, depending on the facts of the situation. One such set of facts would be when the government has condemned a plot of land, which plot is subject to an easement in favor of the adjoining property owner, and the government removes the easement by condemning it.
How is an easement extinguished?
An easement might be extinguished by the occurrence of some agreed event. For example, it might have been agreed that an easement would last until the land is sub-divided.
Why should an easement be modified or extinguished?
that the easement should be modified or extinguished because of some change in the nature or extent of the use to which either of the properties is put, or some change in the character of the neighbourhood, or some other relevant change, or.
What is an easement?
An easement is a right that a property owner has to some use of the (usually adjoining) property of another - for example, a right of way such as a driveway . There are four ways in which an easement may be extinguished: This area has its own special terminology: The person who enjoys the easement over the other person's property is called ...
What is the law regarding easements?
The law concerning easements can often be technical and confusing, and often involves many documents. To ensure that your interests are best protected and that all the necessary legal requirements are met , it is strongly recommended that you seek the services of a lawyer experienced in property matters.
Who can surrender an easement?
The registered proprietor of an easement (the dominant owner) may surrender an easement by executing a Memorandum of Transfer of it to the registered proprietor of the servient tenement (see How to create an easement). This is done through This is done through Land Information New Zealand (LINZ).
Can an easement be modified?
Under the PROPERTY LAW ACT 2017 the court may order that an easement be modified or wholly or partly extinguished. It can do this on an application by the occupier of the land that is subject to the easement. An application can also be brought by a person against whom proceedings have been brought to enforce an easement (see How to enforce your rights under an easement).
Can an easement be extinguished without consent?
Therefore the easement will not be able to be extinguished without the council consenting to this.
What is abandonment of easement?
An easement may be abandoned by (1) a long period of nonuse and (2) an act on the part of the easement holder evincing the intent to relinquish the servitude. See Sindler v.
What is extinguishment by adverse use?
Extinguishment by adverse use is like adverse possession on steroids. It requires the typical showing with respect to the elements of a claim for adverse possession, but with the added requirement that the adverse use be inconsistent with the continued existence of the easement. “‘ [A]n easement is extinguished by a use of the servient tenement by the possessor of it which would be privileged if, and only if, the easement did not exist, provided (a) the use is adverse as to the owner of the easement and (b) the adverse use is, for the period of prescription, continuous and uninterrupted.'” Yagjian v. O’Brien, 19 Mass. App. Ct. 733, 736-737 (1985), quoting the Restatement of Property § 506 (1944). See Lemieux v. Rex Leather Finishing Corp ., 7 Mass. App. Ct. 417, 422 (1979) (describing added burden between asserting easement by prescription and extinguishment or termination of an easement by prescriptive use, i.e., use must be “at complete variance with the [easement holder’s] rights”). As one can imagine, this standard is very hard to prove at trial.
Is an appurtenant easement a right of way?
Once granted, an appurtenant easement generally has perpetual existence, as it comprises a vested property right, subject only to the application of various theories of extinguishment, recognized by Massachusetts common law. Therefore, if your property is subject to an easement, even a paper way, i.e., a right of way that exists only on paper, ...
Is the doctrine of unity of title between the affected parcels permanent and enduring estate?
The doctrine, however, is formalistically rigid; it depends upon the existence of two unities: “First, the unity of title between the affected parcels must be of ‘a permanent and enduring estate, an estate in fee in both,’ because ‘the merger of the easement . . . arises from that unlimited power of disposal.'”.
Can an easement be released without a writing?
That said, there are limitations on this theory of extinguishment. An easement cannot be “released” without a writing. See, e.g., Dyer v. Sanford, 50 Mass. 395, 402 (1845).
How does an easement end?
An easement is terminated by release when the dominant estate (landowner that is benefited by the easement - the one using the easement) grants a release of its easement rights to the servient estate (landowner that is burdened by the easement - the one allowing someone else to use their land).
What happens if you stop using an easement?
Once you have either stopped using the easement or blocked the use of an easement, depending on which party you are, you will have to either show an intent to relinquish your easement rights or you will have to block the other party's use of the easement in an open manner.
How to terminate an easement through prescription?
The first step in terminating an easement through prescription is to block the other party's use of the easement. For example, if you have allowed another landowner to drive across your driveway in order to get to their land, you could put up a fence across your driveway and not allow the other party to get through.
When does an easement terminate?
If your easement includes a provision stating that it will be terminated on a certain date or at the occurrence of a certain event, then your easement will terminate when that date comes or when that event occurs. Look through your easement documents for one of these provisions and understand how the provisions works.
Where are easements recorded?
Easements are created in a variety of ways and they are most often recorded in an applicable registry of deeds, which is where interests in real property are recorded. When you no longer have use for the easement, there are a number of ways that you can terminate it.
What happens if you notify the other landowner?
Also, notifying the other landowner will give you an opportunity to discuss the termination provision and will allow you to agree on the easement's termination. In some instances, you or the other party may want to extend the life of an easement and notifying the other party will allow you to have this conversation.
How does an easement terminate?
If an easement exists and the new owners of both properties find that it's no longer of interest or use to the dominant property owner, the easement can be terminated by the dominant property owner signing a release document to the servient property owner.
Why does an easement cease to exist?
Abandon the Easement. An easement can also cease to exist because it's unable to be used any longer. In the case of the utility company, it might erect a fence around its site before construction is completed with the fence encroaching into the easement area.
What is an appurtenant easement?
Sometimes adjacent properties have an easement between them, allowing one or both parties access to the other. One is the servient property, and the property that benefits from the easement is the dominant property. In this case, you have an appurtenant easement .
What is a prescriptive easement?
A prescriptive easement is the result of a somewhat complicated legal concept known as adverse possession. The parcel of land beside Joe's rural home has been vacant and unused for as long as he can remember — maybe even decades. One day he decides to build a garage there because he has no room to add one to his own property. He's adversely possessing the adjacent land and he's broken the law because he doesn't legally own it, but that's an issue in and of itself.
What happens if you dispute a quiet title?
If no one disputes the action, the title would be quieted and the land would be replanted as it's surveyed.
Is it legal to remove an easement?
Easements are legal — and sometimes not so legal — rights to the use of property granted to a nonowner. These grounds to terminate easements are all legally viable, but they're often opposed by one party or the other. It almost always requires some sort of overt legal action or procedure to remove an easement.
Can an easement be used to cross your land?
Although most easements "run with the land" or pass forward to new owners of the involved properties, circumstances such as these can render an easement of no further use. You might give a utility company an easement to cross your land to get to a site where it's doing major repairs or establishing a new power plant. You can create an easement to end on a specific date or with a certain event, such as the repairs or construction being officially completed — assuming the utility company has created other access to its location.
What is utility easement?
Utility Easement – this is the common type of easement and is usually attached to the property deed. It grants the holder to use the property for a specific purpose. This means that a utility company has all the legal right to come to your property, even without your permission. Private Easement – this easement grants an individual or a group ...
When does an easement end?
In the case of an easement in gross, the easement ends when its holder dies or if the property has been sold or transferred to a different name.
How does an easement lose its validity?
An easement loses its validity if the dominant owner expressed the release of the easement of his own accord. Either that, or you can offer a form of incentive to the dominant owner for the release of the easement. In other words, it’s like buying out the easement or offering a negotiation for the release.
Why does estoppel terminate an easement?
However, instead of extinguishing the easement because of the dominant tenant’s intent to give up, estoppel terminates the easement because the servient owners relied on the dominant owner’s conduct, which indicated his intention to give up the easement.
How long does an easement last?
The easement will last only as long as the specified purpose has been served.
What happens if a utility easement is destroyed?
Likewise, if the purpose of a utility easement is to run water lines to a new location , and those lines got destroyed or abandoned for whatever reason and deemed unusable, the purpose of the easement has been destroyed. This also effectively extinguishes the easement.
What is a prescriptive easement?
Prescriptive Easement – this type of easement is somewhat similar to an easement by necessity. The only difference is that the easement is valid for a specific period of time. A property owner can grant an individual access to the land but only on a limited basis.
How can a business abandon an easement?
The business owner can abandon the easement by a dissolution of the company or a failure of the business. Another way is for the need to resolve or disappear. The ownership of the easement can terminate if it is no longer viable. If an easement is no longer active, it does not become inactive. Instead of an inactive easement because ...
What is an easement agreement?
Some easements have an agreement between parties that they are only in effect as long as the specific purpose exists. Generally, this will apply to certain situations and the need for access. If the land adjoins a public road or the road is no longer open, partial portions of the landowner’s property may need to grant access until the other road is open once again. If a structure or building provides no access because of destruction or condemnation, the landowner may need to grant an easement temporarily until a new structure or building exists for the public.
What is permanent conservation easement?
There are other aspects of the easement that can also specify this information in the contract such as express, implied or exclusive easements. While usually permanent, some will remain in effect even if the landowner sells the property or passes away. Conservation easements usually remain active and permanent to protect the land no matter what the property owner does. Extinguishing permanent easements is difficult and may require a lawyer to both research the matter and take it to a court.
What happens if a building has no access to the land?
If a structure or building provides no access because of destruction or condemnation, the landowner may need to grant an easement temporarily until a new structure or building exists for the public .
Why do you need a lawyer for an easement?
A lawyer is generally necessary for any legal issues that may occur and to ensure that the termination of the easement is valid.
What happens if an easement is no longer active?
If an easement is no longer active, it does not become inactive. Instead of an inactive easement because of abandonment, the easement ends. The easement holder must stop using the easement, clearly indicate he or she intends to give up the easement ownership or no longer remain in the area.
Why are conservation easements important?
Conservation easements usually remain active and permanent to protect the land no matter what the property owner does. Extinguishing permanent easements is difficult and may require a lawyer to both research the matter and take it to a court.
How are easements extinguished?
An easement may be extinguished by merger. Since an easement is an interest in land held by another person, if the dominant estate (i.e., the property benefiting from the easement) and the servient estate (i.e., the property burdened by the easement) become owned by the same person, there's no dominant or servient estate because they have merged into one. The same result occurs with an easement in gross because the holder of the personal right doesn't need the easement if he owns the property that was subject to the easement.
Who can release an easement?
Only the person holding the right can release it, such as the owner of the dominant estate in an easement appurtenant or the holder of an easement in gross. The release needs to be in a writing signed by the person releasing it. Finally, an easement may terminate by expiration.
What happens to an easement if it is destroyed?
If the structure is destroyed by some natural disaster or some third party (i.e., not the owner of the servient estate), the easement may be terminated. For example, if you have an easement to use a bridge and the bridge is destroyed by a tornado, you may lose the right to cross over that bridge.
What is an easement termination?
As you may recall, an easement is an interest in real property that allows its holder to enter into the land of another person and make a specific use of it. While there a few ways to create an easement, there are actually many more ways for an easement to terminate (sometimes referred to as the extinguishment ...
When does estoppel apply to an easement?
Estoppel may apply if a holder of the easement right engages in conduct that results in the owner of the servient estate reasonably believing that the easement has been abandoned and the owner acted to her detriment based upon that belief. For example, lets say you have an easement to build, maintain and use a dock on someone's lakefront property.
Can you get an easement extinguished by prescription?
An easement is extinguished by prescription if the owner of the servient estate or someone else uses property subject to the easement in a way that is not consistent with the use of the easement.
Can destruction of servient estate terminate easement?
Destruction of servient estate may terminat e an easement. Remember that the servient estate is the property burdened by the easement and sometimes it involves an easement over a building or some other structure on the property.
Abandonment
Merger
- An easement once granted may be ended by merger. Under the merger doctrine, an easement will terminate when the dominant and servient estates become vested in one person. To satisfy this, there must be a complete unity of the dominant and servient estates, meaning that one person or entity owns the entire plot of land. When only a portion of the servient or dominant estate is acq…
End of Necessity
- Easements created by necessity terminate when the necessity comes to an end.7The most common example of easement by necessity will illustrate the difference. Imagine a landowner has a fairly substantial piece of acreage and decides to subdivide it into lots and one of the lots the owner creates is completely landlocked inside the other lots. As the owner sells off those lots, th…
Demolition
- An easement in a building or land will terminate when that burdened building or land is completely destroyed. This doctrine arises out of 357 East Seventy-Sixth St. Corp. v. Knickerbocker Ice,8a case involving a party wall. In Knickerbocker, parties were adjacent property owners. Plaintiff demolished the building on its property except for the party wall. Plaintiff intended to use the par…
Recording Act
- A good faith purchaser for value is not bound by an easement which is not properly recorded prior to a purchase of the encumbered property.9 The easement does not terminate notwithstanding a failure to record the easement if the good-faith purchaser had actual knowledge and notice of any facts which would lead a reasonably prudent purchaser to make inquiries.10
Abuse
- Abusing the rights one has under an easement is not a ground for extinguishing the easement. The mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment which would extinguish the easement.11That is not to say that the servient estate owner is with…
Condemnation
- A government can create an easement by way of condemnation. However, Strnad v. Brudnicki notes that a governmental agency can also abolish an easement by condemning it.12This could take a number of forms, depending on the facts of the situation. One such set of facts would be when the government has condemned a plot of land, which plot is subject to an easement in fav…
Adverse Possession
- Adverse possession may extinguish an easement. For example, in Spiegel v. Ferraro,13 the Court of Appeals discussed a situation in which there was a particular driveway that was the subject of an easement. However, the burdened estate owner fenced off that driveway and patrolled it with guard dogs.14The court found that after 10 years of that fencing in, the land was now free of th…
Release
- An easement once granted may be ended by a release in writing stating that the owner of the easement gives away all rights and remedies including the ability to sue under the easement.15
Conclusion
- Because the termination of an easementis one of the most misunderstood areas of real estate law, the number of cases on the subject has spiked. With every inch of New York City and other parts of New York being sought for fertile building ground, easement problems have reached a new plateau and too many misinformed professionals and their clients have been taking action…
Introduction
- An easement is a right that a property owner has to some use of the (usually adjoining) property of another - for example, a right of way such as a driveway. There are four ways in which an easement may be extinguished: 1. by surrender 2. by merger 3. by court order under the PROPERTY LAW ACT 2017 4. on the occurrence of an agreed event This area h...
Surrender
- The registered proprietor of an easement (the dominant owner) may surrender an easement by executing a Memorandum of Transfer of it to the registered proprietor of the servient tenement (see How to create an easement). This is done through This is done through Land Information New Zealand (LINZ). Once the District Land Registrar is satisfied that the easement has been ex…
Merger
- If the ownership of the servient tenement becomes vested in the person entitled to use the easement (the dominant owner) then an easement will be considered to have been extinguished. If the two pieces of land are in the possession of the same person but have different owners (for example, a person owns and occupies one property and also has a lease on the other), the ease…
Court Order
- Under the PROPERTY LAW ACT 2017 the court may order that an easement be modified or wholly or partly extinguished. It can do this on an application by the occupier of the land that is subject to the easement. An application can also be brought by a person against whom proceedings have been brought to enforce an easement (see How to enforce your rights under an easement). Befo…
Occurrence of An Agreed Event
- An easement might be extinguished by the occurrence of some agreed event. For example, it might have been agreed that an easement would last until the land is sub-divided.
Variation of Easements by Agreement
- The parties can agree between them to vary the easement by both of them executing and registering a Memorandum of Variation of Easement under the LAND TRANSFER ACT 2017. This is then noted on the Register in the same way as the original Memorandum of Transfer that created the easement. This is done through Land Information New Zealand (LINZ). 1. If the ease…
Release
Merger
- Merger, in addition to release, comprises another method by which an easement may be extinguished by operation of law via the instruments of conveyance, recorded at the registries of deeds, rather than through facts and circumstances extrinsic to parties’ chains of record title. Therefore, the doctrine of merger is another theory that can be applie...
Frustration of Purpose / Impossibility
- The first fact-bound theory of extinguishment addressed by this post, frustration of purpose also known as impossibility, can apply theoretically from the very moment that an easement is granted: “When a right in the nature of an easement is incapable of being exercised for the purpose for which it is created the right is considered to be extinguished.” Comeau v. Manzelli, 3…
Abandonment
- Abandonment presents, perhaps, the most prevalent claim for the extinguishment of an easement that we encounter in our practice. However, like all fact-bound claims for extinguishment of an easement, abandonment poses a high bar for a claimant. An easement may be abandoned by (1) a long period of nonuse and (2) an act on the part of the easement holder evincing the intent to r…
Adverse Use
- Extinguishment by adverse use is like adverse possession on steroids. It requires the typical showing with respect to the elements of a claim for adverse possession, but with the added requirement that the adverse use be inconsistent with the continued existence of the easement. “‘[A]n easement is extinguished by a use of the servient tenement by the possessor of it which w…
Estoppel
- Under Massachusetts law, an estoppel may work the extinguishment of an easement based on the following standard: ‘A servitude is modified or terminated when the person holding the benefit of the servitude communicates to the party burdened by the servitude, by conduct, words, or silence,an intention to modify or terminate the servitude, under circumstances in which it is reas…