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Termination of Easements

Posted on September 26th, 2016 | Author: Tim McKeown

An easement is a non-possessory interest in the land of another. A prime example would be an easement allowing owner A to travel over owner B’s property in order for owner A to get to his own property. Much has been written about how easements are created (either expressly or by implication). Of equal importance, however, is how easements are terminated.

The law does not generally favor the extinguishment of easements. Nevertheless, certain types of easements are, by their nature, inherently limited in duration. For example, an easement may contain an express provision subjecting it to termination upon the occurrence of a specified event or contingency.

Beyond an express provision contained in an easement, an easement may terminate if the purpose for which it was created no longer exists, or if the easement holder abandons the easement.

For example, an easement created solely to provide access to a specific public road will terminate when the designated public road is closed. Another example is when an easement for water flowage through a ditch terminates when the easement holder’s water rights have been ended by court order. Similarly, a well easement will terminate when the well is long unused and unlocatable. Thus, if there is no longer any reason for recognizing an easement, it will be deemed to have terminated as a result.

An easement will also be deemed to have terminated when the easement holder has “abandoned” the easement. As a general proposition, as with cessation of purpose discussed above, nonuse alone does not constitute abandonment. Abandonment of an easement will be declared when there is action by the easement holder respecting the authorized use, that indicates an intention never to make the use again. For example, if the holder of an access easement builds a permanent structure so located as to make the use of the access easement impossible then the easement will be deemed abandoned.

Easements are critical to the security of land ownership in this country, and encourage property owners to invest in long term improvements in their land. Their creation, operation, and termination are the subject of extensive commentary and debate in legal circles and in the case law throughout the country.