This article reviews the ways in which an easement may be extinguished by the owner of the property burdened by the easement.

Burdens and benefits exceeded

The owner of property benefiting from an easement across another’s property can enjoin any activity which interferes with the owner’s proper use of the easement. [Calif. Civil Code §809]

However, activity within the boundaries of the easement must actually interfere with the use intended by the grant of the easement.

For example, an owner of real estate holds an easement across a neighbor’s property for ingress and egress.

The neighbor places improvements in the form of water tanks and grapevines in the easement, but not on the actual roadway used for ingress and egress. The improvements do not interfere with the owner’s ability to access his property.

The owner claims the easement granted him exclusive use of the entire area within the description of the easement and demands removal of the tanks and grapevines.

However, the improvements do not unreasonably interfere with the owner’s ability to use the easement since the owner is able to continue using the existing roadway within the easement to access his property. Thus, the neighbor can continue to maintain water tanks and grow grapevines in the easement area, but not on the portion of the easement used for ingress and egress. [Scruby v. Vintage Grapevine, Inc. (1995) 37 CA4th 697]

Now consider an easement across an owner’s property which provides access to neighboring property. The neighbor who holds the easement constantly harasses the owner when the owner parks his cars within the boundaries of the easement. The parked cars do not interfere with the neighbor’s use of the roadway within the easement.

The owner is unable to sell his property since the easement holder intimidates potential buyers.

The owner seeks to extinguish the easement, claiming he is unable to use the portion of his property subject to the easement because of the unreasonable conduct of the easement holder.

The easement holder claims his easement cannot be extinguished since his use of the easement does not permanently interfere with and exclude the owner from the easement or additionally burden the owner’s property.

Here, the easement cannot be extinguished. The harassment of the property owner by the easement holder does not relate to and thus does not burden the intended use of the easement for ingress or egress – harassment is not a use. [Reichardt v. Hoffman (1997) 52 CA4th 754]

Termination of easements

An existing easement can be extinguished, and thus no longer affect the burdened property. Methods to extinguish an easement include:

  • release of the easement by deed;
  • merger by the acquisition of fee title to both the benefiting and burdened properties by the same owner;
  • destruction of the burdened property which permanently prevents any further use of the easement;
  • forfeiture due to the easement holder’s abuse of the easement rights;
  • prescription due to the burdened property owner’s continuing interference with the easement; and
  • abandonment by the conduct of the easement holder showing he does not intend to use his easement rights.

Release by deed

The owner of property benefiting from the use of an easement may easily terminate the easement by releasing the easement to the owner of the property encumbered by the easement. The release can be accomplished by use of a quitclaim or grant deed in favor of the owner of the property encumbered by the easement and signed by the owner of the property with the right to use the easement.

Merger

A merger of legal interests by common ownership extinguishes an easement. Merger occurs when the same owner acquires fee title to both the benefiting and burdened properties.

Since an owner cannot have an easement over his own property, the easement is automatically extinguished on the common ownership of the properties. [CC §805]

Merger does not occur unless sole ownership of fee title is acquired over both the benefiting and the burdened property by a common owner.

Thus, no merger occurs when an owner of burdened property acquires title to the benefiting property as a co-owner – the owner is not the sole owner of both properties. [Cheda v. Bodkin (1916) 173 C 7]

Also, acquiring a lien which encumbers either the benefiting or burdened property by the owner of the other property is not a merger of interests.

Destruction

An easement is terminated by the destruction of the burdened property since nonexistence of the burdened property renders the use of the easement impossible.

Consider an easement to use a stairway in an adjoining building. When the building burns down, the easement is extinguished since the owner is not required to rebuild the stairway. [Cohen v. Adolph Kutner Co. (1918) 177 C 592]

Forfeiture

An easement is terminated by forfeiture when the easement holder abuses his use of the easement – his use of the easement places an excessive burden on the property subject to the easement.

Consider a subdivider who holds a right-of-way easement over a neighbor’s property.

Later, the subdivider divides his property into several residential lots. For access, he constructs a road over the easement through the neighbor’s property to a busy public road which opens the easement to public use.

The neighbor claims the easement has now been extinguished since the increased use of the easement by the residential lot owners and the public creates an excessive burden.

Is the right-of-way easement terminated by the increased use?

Yes! The increased use of the easement is an excessive burden on the property it encumbers. The easement is extinguished by forfeiture since it is not practical to limit the increased use of the easement as a public road. [Crimmins v. Gould (1957) 149 CA2d 383]

The standards for forfeiture are nebulous and left to the discretion of the courts to determine, on a case-by-case basis, whether the easement holder’s actions constitute an undue hardship on the owner of the property burdened by the easement.

Prescription creates and destroys

Just as an easement can be established by adverse use of another’s property, an easement can be extinguished by the burdened property owner’s adverse use within the area of the easement which permanently interferes with the neighbor’s ability to use the easement.

For example, a subdivider sells a parcel, granting a right-of-way easement over an adjoining parcel he owns in the subdivision.

Later, the subdivider constructs a building on the adjoining parcel which blocks the use of the easement.

More than five years later, a buyer of the parcel benefiting from the recorded easement seeks to quiet title to the right of way.

Is the easement terminated by the subdivider’s unauthorized improvement which has blocked any use of the easement for more than five years?

Yes! The owner’s obstruction of the easement is an adverse use by the owner of the property burdened by the easement. Thus, the easement is extinguished since the owner of the burdened property interfered with any use of the easement for a period of five years. [Glatts v. Henson (1948) 31 C2d 368]

An adverse use for purposes of terminating an easement is any act by the burdened owner which permanently obstructs the beneficial use enjoyed by the holder of the easement.

Abandonment

An easement can also be terminated through abandonment by the easement holder. However, the easement holder must clearly indicate his intent to permanently abandon the easement.

Consider a subdivider who grants a buyer of a parcel a right-of-way easement over an adjoining parcel owned by the subdivider.

The buyer plants trees on his property blocking his own access to his easement over the adjoining parcel.

The subdivider later builds a fence between the parcels which also bars the buyer’s access to the easement. The buyer makes a demand on the subdivider to remove the fence.

The subdivider claims the easement has been extinguished by the buyer’s abandonment – as evidenced by the trees blocking access to the easement.

Has the buyer abandoned the easement by planting trees blocking his access to the right of way?

No! Mere nonuse of an easement is not sufficient conduct to demonstrate an intent to terminate the easement by abandonment. The buyer’s planting of trees blocking access to the easement does not indicate he will not decide to use the easement in the future. [Tract Development Service, Inc. v. Kepler (1988) 199 CA3d 1374]

Thus, the termination of an easement by abandonment is not easily established. The easement holder’s actions must demonstrate a clear intent to abandon all future use of the easement.