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Jim Kimmons is a real estate broker and author of multiple books on the topic. He has written hundreds of articles about how real estate works and how to use it as an investment and small business.
Updated on 05/08/19Easements 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. You'll probably have to take the matter to court by filing a civil lawsuit so that you can achieve the clear title, but you can remove problematic real estate easements in several ways.
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.
Suppose the legal description of the property is a very old one. There's never been title insurance and some of the boundaries are described as fence lines of properties owned by others. Filing a quiet title action can announce your intent to make the boundaries agree with a current survey even if they aren't precisely along the currently existing fence lines.
If no one disputes the action, the title would be quieted and the land would be replanted as it's surveyed. A real-world example of a quieted title was an easement for a specifically named woman to cross the property to access a community as well. The easement was over 75 years old, the woman was deceased, and the well had long since been capped for health reasons. The easement was no longer necessary and was therefore terminated.
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.
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. This can be legally construed as the company abandoning the easement because it has technically blocked the access the easement was established to create.
Abandonment can be a gray area, however. It's generally not considered to be abandonment simply because the company no longer uses the easement, such as if it abandons construction instead. The idle construction area would remain accessible by the company should it ever decide to resume operations there — unless, of course, it could be proved that the company never intended to resume operations. In this case, an argument could be made that the easement's purpose has expired.
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.
Next, Joe pours concrete to expand his existing driveway so that it turns into the new garage on the adversely possessed property. Now he's created an easement, even without the land owner's consent. But as it turns out, he decides not to use his new garage. He discovers that he hates walking across all that land after parking just to get to his front door.
Should the holder of a prescriptive easement cease to use it, this is a form of abandonment.
In the case of an easement created for a party wall — a wall on the property line that serves both properties — the destruction of the party wall would effectively terminate the easement.
Likewise, if an easement were created for the utility company to run power lines to the street from its new location, and if those power lines were torn down and abandoned for some reason, never to be used again, the easement becomes void. Its purpose has been destroyed.
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.
If one owner acquired both properties and combined them into one legal description, the easement would no longer be necessary. The two properties have merged. This might occur because the owner of the servient property decides to sell and the owner of the dominant property jumps on the opportunity to expand her homestead by purchasing the property herself.
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. This release document can either release the servient property owner from the easement or release the easement property to the servient property owner, thus releasing the easement property from being an easement.
