This is the final episode in our new video series on easements. The prior episode covers the requirements for establishing an easement by necessity and a prescriptive easement by adverse use.

 This episode depicts extinguishing an easement through release, merger, destruction, forfeiture, prescription or abandonment.


Methods to extinguish an existing easement

An existing easement can be extinguished. Once extinguished, the easement no longer affects the burdened property as an encumbrance on its title.

Methods used to extinguish an easement include:

  • release of the easement by a deed from the owner of the property holding the appurtenant right to the easement;
  • merger by the acquisition of fee title to both the benefitting 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 their 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 they do not intend to use their easement rights.

Release by deed to burdened property

An owner of property benefitting from the use of an easement may voluntarily terminate it by releasing the easement to the owner of the burdened property.

The release is accomplished by the use of a quitclaim or grant deed in favor of the owner of the burdened property, signed by the owner of the property holding the appurtenant right to use the easement.

Merger as an extinguisher

A merger of legal interests comprising the servient and dominant tenement rights and obligations in two properties due to common ownership of both properties extinguishes an easement.

A merger occurs when the same person acquires fee title to both the benefitting and burdened properties.

An owner cannot have an easement over their own property for the benefit of their own property.  Thus, the easement is automatically extinguished on the common ownership of both the properties. [Calif. Civil Code §805]

However, no merger occurs when the owner of burdened property acquires a fractional interest in title to the benefitting property as a co-owner since the owner is not the sole owner of both properties. [Cheda v. Bodkin (1916) 173 C 7]

Additionally, acquiring a lien, such as a trust deed, encumbering either the benefitting or burdened property by the owner of the other property is not a merger of interests.

Extinguished by destruction of property

An easement is terminated by the destruction of the burdened property. 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 for exceeding authority

An easement is terminated by forfeiture when the easement holder exceeds their authorized use of the easement by placing an excessive burden on the property encumbered by the easement.

For example, consider a subdivider who owns land entitling them to use a right-of-way easement over a neighbor’s property for access.

Later, the subdivider divides the property into several residential lots. For access, the subdivider constructs a road on the neighbor’s property within the legally described easement to a public road. Here, the increased use of the easement constitutes an excessive burden on the property it encumbers, and thus the easement is extinguished by forfeiture. [Crimmins v. Gould (1957) 149 CA2d 383]

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

Prescription creates and destroys

An easement may be established through prescription by the adverse use of another’s property. Likewise, an easement may be extinguished by prescription when the burdened property owner’s use of the area within the easement which permanently interferes with their neighbor’s ability to use the easement.

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

Consider a subdivider who sells an unimproved parcel of land, granting the buyer a right-of-way easement for ingress and egress over an adjoining parcel. Later, the subdivider constructs a concrete block wall on the common boundary line which blocks any use of the easement by the buyer.

More than five years after the block wall was constructed, the buyer of the parcel benefitting from the easement seeks to quiet title to the right-of-way.

Here, the obstruction of the easement is an adverse use by the subdivider of the property burdened by the easement. Thus, the easement is extinguished since the subdivider interfered with the use of the easement for a period of five years. [Glatts v. Henson (1948) 31 C2d 368]

Abandonment as never to use again

An easement can also be terminated through abandonment by the easement holder. The termination of an easement by abandonment is not easily established.

The easement holder’s actions need to demonstrate a clear intent to permanently abandon all future use of the easement, never to use it again.

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 their property, blocking their access to their own easement over the adjoining parcel.

The subdivider later builds a fence between the parcels which further bars the buyer’s access to the easement. The buyer makes a timely demand on the subdivider to remove the fence. The subdivider claims the easement has been extinguished by the buyer’s abandonment of the easement, evidenced by the trees blocking access to the easement.

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

No! Mere nonuse of an easement is not sufficient conduct to demonstrate an easement holder’s intent to terminate an easement by abandonment. The buyer’s planting of trees which block access to the easement does not indicate they have decided to never use the easement in the future. [Tract Development Service, Inc. v. Kepler (1988) 199 CA3d 1374]