Skip to Content

News & Resources

I’ll be back (on your property): Can an easement be terminated? p3

10/9/2015 | Real Estate Blog

We are wrapping up our discussion about terminating easements. Generally, an easement will terminate when it is no longer needed or at a time agreed on by the dominant and servient property owners. (Remember, the servient property owner grants permission to use the land to the dominant property owner.) Because an easement is limited to the purpose agreed on, the dominant party cannot convert the easement into something else and cannot continue to use the easement after the purpose no longer exists.

That all may look like a lot of legalese, but the ideas involved are fairly simple. If you have agreed with your neighbor to use a strip of his land for your own driveway, you cannot fence the land off and plant an apple orchard instead. If you have granted your neighbor an easement so he can plant a garden, the easement is terminated if he decides gardening is not for him.

Going back to your decision to plant an orchard on property your neighbor is letting you use for a driveway: It’s illegal, but you do it anyway. The easement is now being used for something completely different from its stated purpose. Is the easement terminated or even suspended while you work things out with your neighbor?

Not necessarily. Your neighbor may have a claim for trespass, but to terminate the easement, your neighbor will have to do more. He will have to prove that by using the land as a garden, you have made it impossible to use for its original purpose.

What if the problem is not a matter of purpose but a matter of degree? Your neighbor’s driveway runs through your property, and you were fine with it when he lived in his house alone. Recently, though, he turned his backyard into a campground. Instead of one car a few times a day, you now deal with constant traffic at all times of the day and night.

You may be out of luck. The land is still a driveway, and the increased frequency of its use does not terminate the easement.

Even in three posts we have just brushed the surface of the topic. If you have questions about your own situation, we urge you to consult with an experienced attorney.

Source: Tiffany Real Property 3d, Ch. 14 § Part IV Extinction of Easements, September 2015, via WestlawNext