An easement is simply the right to use another person's property for some specific purpose. Common examples are rights of way, rights to light and utilities easements. Easements generally take one of three forms. An express easement is expressly negotiated between the parties and recorded against the title to both the benefited (dominant) and burdened (servient) land.
A prescriptive easement arises through long term use. An easement of necessity arises for some essential purpose, typically where a landlocked piece of land could not otherwise gain access. Most easements go on forever, unless some specific action is taken to remove them.
Type of Easement
Determine whether the easement you want to remove was created by express grant, by prescription or by necessity. If it was created by express grant, check the title deeds to see whether the easement is limited in time. If it is, the easement automatically expires when the time limit runs out and you do not have to take any action to remove it.
If the easement is one of necessity and the necessity has ended, the easement will also have ended, for example, if a new road is built giving access to previously landlocked land.
Determine whether the benefited and burdened properties have ever been in common ownership. If the same owner holds or has held both parcels of land, the land is deemed "merged" and the easement ceases to exist, regardless of what subsequently happens to the land.
Review for Abandonment
Look at the facts and decide whether the dominant owner has abandoned the easement. Non-use is not enough to abandon an easement but a clear intent to stop using it is. Similarly, if the owner of the servient land interferes with the easement in a material way, such as blocking off a right of way, and the dominant owner does nothing about it for a prescribed statutory period of time, the easement will be lost. A court order is needed to clear the easement off the title. The plaintiff must show compelling evidence that the easement has been abandoned.
Negotiate a Release
If the easement has not been merged, abandoned or extinguished the only way to get rid of it is by express agreement with the dominant owner. The dominant owner can give the release of his own accord, or you can offer an incentive (payment) to effectively buy out the easement, or offer alternative arrangements. Consult an attorney to document the release in a legal deed.
Easements are an interest in land and have a value. A clever dominant owner would not give up an easement without proper compensation. If the value of the easement is disputed, consult an expert.
- Easements are an interest in land and have a value. A clever dominant owner would not give up an easement without proper compensation. If the value of the easement is disputed, consult an expert.
Jayne Thompson earned an LLB in Law and Business Administration from the University of Birmingham and an LLM in International Law from the University of East London. She practiced in various “big law” firms before launching a career as a commercial writer. Her work has appeared on numerous financial blogs including Wealth Soup and Synchrony. Find her at www.whiterosecopywriting.com.