Terminating Easements – What Are the Options?

Retail, commercial, and industrial properties are often subject to easements. Situations may arise where a property owner must address an easement. Before we discuss termination of easements, let’s start with the basics.

Easements can take many forms, including

• utility easements for electric, gas, water or sewer service,
• access easements for shared driveways or to allow a neighbor access to their property,
• easements by implication or necessity, or
• prescriptive easements (adverse usage).

This is not an exhaustive list of all of the types of easements, but simply a description of easements we often encounter.

In legal terms, we refer to the parcel of land that benefits from the easement as the “dominant estate” and the land burdened by the easement as the “servient estate.” For example, if ABC Corporation owns land that is subject to a driveway easement in favor of XYZ Corporation, XYZ Corporation owns the dominant estate and ABC Corporation owns the servient estate. In most cases, easements do not present problems.

What If an Easement Becomes a Problem?

What happens when an old or unknown easement creates a problem? This issue does arise from time to time, and we are often asked whether we can do anything to terminate the easement. Our answer often depends on the type of easement and how it was created. We will discuss a few options for terminating an easement.

Termination of Easement by Written Agreement

First, a written instrument signed by all parties terminating an easement is the easiest way. The signed agreement should be recorded in the applicable land records and reference the easement being terminated. However, if the easement is old and one party cannot be located, terminating by written agreement may not be feasible. Even if both parties agree to terminate the easement, it’s best to have an experienced lawyer prepare and help execute the agreed easement termination to be sure it is handled properly.

Termination of Easement by Abandonment

Second, if the easement has not been used in a long time, a property owner can argue the easement is abandoned and should be removed from the land records. The party seeking to have the easement deemed abandoned has the burden of proving the “intent to abandon” by the dominant estate (i.e. the party using the easement).

Generally, a property owner will seek an order of a court declaring that the easement has been abandoned and may be removed from the land records. This is a very fact-sensitive inquiry and often requires numerous witnesses to testify on the issue of the actual easement use. It is crucial to know why the easement was created, who has used the easement over time, and whether it is still necessary for any purpose. An experienced easement lawyer can be a valuable ally in these court situations.

Easement Termination by Law

Third, look for legal arguments, such as invoking the merger doctrine. Under the merger doctrine, an easement will terminate when the dominant and servient estates become vested in one entity. In other words, if the same person or entity owns both parcels of land involved in the easement, there is no need for an easement and it will be terminated.

For example, assume ABC Corporation subdivides land and reserves an access easement across one of the new lots to gain access to another lot. Later on, down the road, XYZ Corporation buys the lots and takes ownership of both the dominant and servient estates. Under the merger doctrine, the easement will be extinguished once the titles of the various lots are vested in the same entity, namely XYZ Corporation. Note that the deed can contain “anti-merger” language to preserve the easement if the parties want to maintain the easement. A careful review of the title to the property is necessary.

Lack of Necessity Can Be a Reason For Termination of an Easement

Fourth, if the easement was created by “necessity,” the easement can be terminated when the necessity ends. An example is when a landlocked parcel of land gains access to the road system by another means, a prior road access easement is no longer required so the door is open to terminate the easement.

Note that this remedy is generally limited to easements by necessity, not written easements. It is very important to understand how the easement was created. Like an abandoned easement, this remedy generally requires filing a petition for a Court order to have the easement removed.

Easement Termination by Its Own Terms

Finally, look to the terms of the easement itself. Does the easement have an end date or some type of act that will terminate the easement rights? Is there some type of default under the easement agreement, such as failing to contribute to maintenance of the easement or violating other easement terms? If so, the easement may end automatically when the termination terms are met.

If You Need to Terminate an Easement, Contact the Commercial Real Estate Team at Stark & Stark

Old easements that remain on record can interfere with the development of land and cause a problem when seeking land use approvals. For example, some larger retail centers have old access easements crossing the parking lot to benefit older retail tenants which can impact the future development of the property.

It is also important to note that how the easement is terminated could impact whether the easement remains an exception to a title policy. As a general rule, it is good to consult a title company to inquire about the process you are using to terminate an easement and whether, once done, the easement will be removed as an exception to any future title policy.

At Stark & Stark, our commercial real estate team can help you evaluate your rights under an easement and determine whether termination of an easement is possible and the best way to clear the property to meet your needs. We can work with title companies, other land owners, zoning officials, and other entities to help you terminate an easement that is causing problems.

Contact our experienced easement lawyers online or by calling 800-535-3425 today.