Use and Termination of Easements

In real property law, all types of easements involve property rights that affect a piece of land. The purpose of the easement is to create a right of way over the parcel of land for another’s benefit.

The owner of the easement can be a person or property called a dominant tenement. The owner of the servient estate is responsible to the owner of the dominant estate (tenement) for allowing right of way.

This article provides information on how easements may be used and terminated under real estate law.

Use of an Easement as a Right

Easements can be created in a variety of ways. Common ways to create easements include:

• Express grants - An express easement agreement is committed to writing inside a deed or contract, where a grantor gives an easement right to another
• Implied easements - When it becomes necessary to maintain an accessway that existed before a lot was severed into multiple parcels
• Prescriptive easements - When an easement right is created over time through trespassing or squatting, as in the case of adverse possession

Once an easement is created, the holder of the easement rights has the right and the duty to maintain the easement for its stated purpose. The agreement is between the holder of the easement rights and the owner of the underlying property.

An easement is an an encumbrance because it limits one’s rights to their own property. Under the terms of the easement, servient tenement (or estate) must accommodate the easement holder or dominant estate. The servient land must serve the easement holder’s specific purpose, which involves the use of the land. Examples of the easement holder’s use include:

• A utility company’s ability to run power lines across private party land, as in the case of utility easements
• A neighbor’s right to cross an adjacent property to access the road
• The public’s right to cross private property to accommodate zoning laws that create public access to open spaces

The holder of the easement rights can make repairs and improvements to the easement. These repairs or improvements can't interfere with the rights of the owner of the property through which the easement exists.

Terminating Easements

Unlike other interests in land, an easement can be terminated by abandonment under certain circumstances. The easement holder's simply stating a desire to abandon the easement is not enough, because words alone are legally insufficient to constitute abandonment.

The easement holder can show they mean to abandon an easement by taking actions that support their intent. This may be sufficient to show abandonment of the easement. An example showing intent to abandon an easement is an easement holder's non-use of the easement for an extended period.

In general, termination can also be achieved by:

• Agreement between parties, such as a release or waiver agreement
• Court action, such as quiet title litigation
• When two properties merge into one, like when one person becomes the sole owner
• An expiration date specified in an original easement agreement, if one exists

There is an important disclaimer to beware of. Acts of hostility or violence are never an appropriate way to terminate easements. A property owner or easement holder should never try to end an easement by:

• A physical altercation between landowners
• Setting up obstructions or traps on their land
• Creating dangerous conditions to discourage use of the easement

This illegal behavior can only create trouble and lead to criminal charges.

Hire a Lawyer To Challenge an Easement

If you have more questions about challenging or terminating an easement, a real estate attorney can help. They can review an easement contract or analyze the conduct of the parties involved. This will help them determine how an easement may affect your property or land use. A lawyer can also help you take legal action to protect your legal rights.