Simply put, an easement is a right to use someone else’s property. As a property owner, you might grant an easement to allow neighbors to cross your property to get to theirs or to gain access to water lines, wells, or utilities. Many easements were set up decades ago and are no longer useful or desired, so the question becomes, how can you extinguish an easement? It’s not always easy, but it is often possible.
1. Beneficiary Gives Up Easement
If the person whose property benefits from an easement is willing to give up the easement, the easement can be released. The beneficiary signs a quitclaim or grant deed in favor of the owner of the burdened property.
2. Merging Properties
If the property next door has an easement that burdens your property and you are in a position to buy the property next door, you can then merge the two properties. An owner cannot have an easement over their own property for the benefit of their own property, so the easement is automatically lifted. For this to be true, you must own the whole property; a partial interest will not suffice.
3. No Property, No Easement
If the property involved in an easement disappears, so does the easement. For example, if you had an easement to use a stairway cut into a cliff to gain access to a beach but the cliff erodes and the stone steps drop into the ocean, then the easement is forfeit – no stairway, no easement.
4. Abuse of Easement Rights
Over time, easements can cause friction because the properties in question are no longer used in accordance with the original agreement. Let’s say there’s a big ranch property behind your house. The only way for the owners to access their property is via a dirt road that runs 50 feet from your front door. Since one family owns the ranch, traffic is minimal.
However, if the family sells the ranch and the new owner subdivides it and builds 200 single-family homes, you can cry foul. The original easement was never intended to allow hundreds of people to zoom by your house at all hours of the day and night.
5. Prescriptive Easements Can Come and Go
Prescriptive easements are a specific kind of easement where someone gains the right to use another’s property by using it the way they want to over time, while the owner knows about it but doesn’t complain. These easements can be removed by a lack of use.
Let’s say your neighbor drives through your back gate to access their back yard for ten years. Eventually, they earn a prescriptive easement because you don’t care if they use the gate. However, if new neighbors move in and they never use your gate. After five years, the prescriptive easement can be extinguished. You can replace the gate with fencing and the neighbor cannot ask you to keep the gate for their use.
6. Abandonment of Easements
If the beneficiary of an easement abandons it, they can lose it. The beneficiary must do more than simply stop using the easement. They must make it clear they never plan to use it ever again.
Let’s say your neighbor has an easement through your property that connects their property with an old fire road. The neighbor builds a retaining wall, plants large trees, and erects a shed on a concrete foundation that would prevent any vehicle from gaining access to the easement. In your mind, they have just abandoned the easement. This means that if you build a fence blocking the easement from your side, the neighbor should not be able to protest about the easement (when really, they just don’t like your fence). Be aware that courts do not always agree with property owners on the clarity of a neighbor’s abandonment. Trees can be cut down. Sheds can be dismantled.
As with most everything in real estate law, the large print giveth and the small print taketh away. Be sure to read your preliminary title report before purchasing a property to see what easements may exist. Sometimes easements are handwritten and 120 years old, but that doesn’t mean they aren’t relevant.
If you have questions about property management or real estate, please contact me at email@example.com or call (707) 462-4000. If you have an idea for a future column, share it with me and if I use it, I’ll send you a $25 gift certificate to Schat’s Bakery.