Most people use easements in their daily life without ever thinking much about their legal right to do so – whether it’s using a long driveway to access a residence or flushing a toilet relies on underground pipes to connect to the municipal system.
However, the continuing validity of an easement depends on various legal doctrines get applied to the unique circumstances underlying each easement. Disputes often arise in this context between landowners with property burdened by an easement (the “servient estate”) and another person claiming a right under the easement to access that landowner’s property (the “dominant estate”).
For example, imagine owning a residence for twenty years and suddenly having large construction vehicles arrive to build a new road, directly across your front yard. That road will soon be used as the primary access to a new subdivision. To thwart this use of the property, your attorney would typically gather facts and review the developer’s alleged access easement to determine whether the easement is still valid or whether it has terminated. You then might seek a court ruling the easement is terminated in a quiet title lawsuit.
An easement may terminate for numerous reasons. The most common include: impossibility of purpose, merger, elimination of necessity, abandonment, adverse possession, eminent domain, and the express terms of the easement itself.
Impossibility of Purpose Doctrine
Many easements are made for a specific purpose. An example could be providing access to a proposed cell phone tower for maintenance purposes. If the town’s zoning regulations preclude the use of the site for cell towers, the impossibility of purpose doctrine may terminate the maintenance easement. The purpose of the doctrine is to eliminate meaningless burdens. If an easement was created for a specific purpose, the doctrine assumes the parties intended for the easement to expire upon the cessation of that purpose.
Under this doctrine, where a change has taken place since the creation of the easement making it impossible to complete the purpose of the easement, and modification is not practical or would be ineffective, the easement may be terminated. Stowell v. Andrews, 171 N.H. 289, 295 (2018).
Easements assume the easement holder does not also owe the underlying land. If the same person owns the land and also holds the easement rights, there is no purpose served by the easement. When both the property benefited by the easement and the property over which the easement runs comes under single ownership (or “unity of title), the easement terminates. Hayes v. Moreau, 104 N.H. 124, 125 (1962).
Elimination of Necessity
Easements can be created by necessity. This happens most often when landowners have no way to access their property, and they must request a court recognize an easement of necessity to provide reasonable access to the property.
However, an easement of necessity may be lost if the necessity itself is later eliminated. This could happen if a new road is built providing direct access to a property benefitted by an easement of necessity which eliminates the need to use an easement across a neighboring property. Hayes v. Moreau, 104 N.H. 124, 125 (1962).
(For more information on land-locked land and implied easements, please see our earlier article on that topic.)
Easements may be terminated when the easement holder manifests a clear intent to relinquish the easement, or acts in manner inconsistent with the further existence of the easement. Titcomb v. Anthony, 126 N.H. 434, 437 (1985). For example, the easement is likely abandoned if the dominant estate no longer uses it and acquiesced to the servient estate demolishing a paved driveway to preclude any future use of the easement.
Adverse possession allows a person to obtain property rights solely due to their use of the property as if they owned it where the use continues for at least twenty years without the owner’s consent. An easement similarly can be lost to adverse possession in some situations if there is a showing the third party’s possession and use of the easement gave notice to the easement beneficiary that an adverse claim to the easement rights was being made. For example, if the servient estate builds a fence blocking off access to the easement, the adverse possession period will begin to run and the easement will terminate if it remains blocked for twenty years. Cushing v. Miller, 62 N.H. 517, 438 (1883).
Governmental entities can terminate an easement by forcing the sale of the property or the easement rights through an eminent domain proceeding. This allows the government to forcibly take private property so long as the easement holder is given just compensation.
The recorded easement document may state the easement shall be terminable at the will of either party, on a certain date, or upon the occurrence of a given act. For example, a temporary construction easement may include language stating the easement will terminate upon the end of construction or within six months, whichever comes sooner.
Paul J. Alfano
You can reach Paul Alfano at email@example.com or (603) 856-8411.