Easements – Part 6: Termination and Abandonment

attorney steve beede

Today we complete our series of Articles on the creation, use, protection, and now termination of Easements. You can view all of the prior Easement Articles (as well as all other Articles) in the News/Blog section of our website at www.bpelaw.com.

As always, if you have any questions about your real estate, business, estate planning, or any other legal issue, please let us know by e-mailing me at sjbeede@bpelaw.com. Also, remember that we do legal presentations for business and community organizations. If your group would like this, please contact me to setup a date and time.

Today, we return to where we started on this series of Articles. Where the earlier Articles covered how Bob could obtain a right to cross over Tim’s property to get to the Road (an Easement), today we’ll cover how Bob’s right can come to an end.

As covered in my previous Articles on Easements, an easement” is the right to use the land of another owner for a specific purpose. It is not an ownership interest in land but, rather, a nonpossessory interest in the land of another. That right to use the land of another can be created by written agreement or even by unopposed usage over time. Once created, easement rights continue indefinitely unless something occurs to terminate the easement. These are as follows.

1. Termination by Agreement – Just as easements can be created by agreement between the parties (Dominent and Servient Tenant), they can similarly be terminated the same way, for example:
(1) The parties enter an agreement to terminate the easement;
(2) The language of the original easement agreement might specify a termination date or event:
a. the easement only lasts for a limited time;
b. The easement lasts for the lifetime of the easement holder;
c. If the easement is created for a special purpose – such as for a railroad – it could end when that special purpose ends;
Just as any agreement creating an easement must be in writing and should be recorded, so too should be any agreement terminating an easement.

2. Merger of Interests – since an easement gives one person (the Dominent Tenant) rights over land owned by another (the Servient Tenant), if the Dominent Tenant acquires the property of the Servient Tenant the easement would come to an end by “merger”. You cannot hold an easement against land that you own. Significantly, once the merger terminates the easement, the easement is not revived if one of the properties is later sold to someone else.

3. Abandonment – although easements can be created by agreement or by unopposed use, they can similarly be terminated by abandonment. However, lack of use alone does not necessarily prove abandonment. Proving abandonment can require the following:
(1) Stoppage of use with intent to abandon. ie: the easement is being given up. Proving this intent might be difficult unless the easement holder does something adverse to continued use:
a. For a railroad easement, removing the tracks;
b. Erecting a structure that blocks continued use of the easement;
c. Failure to object if the Servient Tenant blocks the easement (time requirement);
d. Easement holder obtains a new easement that serves the same purpose;
e. Easement becomes unusable because the easement holder fails to maintain it.
(2) Stoppage of use without intent to abandon – no expression of intent by easement holder. Under California Civil Code Sec. 887.050 an easement can be determined to have been abandoned if all of the following requirements are met:
a. The easement has not been used for a minimum of 20 years;
b. No separate tax assessment has been made, or paid, on the easement area;
c. No document creating the easement has been recorded.The impact of this requirement c. is that abandonment will not apply where there has been a recording evidencing the easement – such as an easement deed, or a reservation of easement in a grant deed, or any other recorded document evidencing the intent that an easement has been created. As such, abandonment by lack of use would apply when easements are created by adverse use, ie: a prescriptive easement.

For over 20 years, the attorneys of BPE Law Group, P.C. have been advising and representing property owners and real estate professionals on all issues concerning the use of real property. This involves everything from purchase and sale, to land use and subdivision, to litigation, mediation, and arbitration. If you would like a consultation with us, please call our office at (916) 966-2260 and our staff will schedule you with one of our very experienced real estate attorneys. Our flat fee consult for new clients may get you the answers you need for the questions you have. If you have a general legal questions, please e-mail me at sjbeede@bpelaw.com.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.