Setting the Record Straight on Terminating Easements

Finding real estate property to purchase nowadays can feel as elusive as spotting the Loch Ness Monster or Bigfoot. Buyers are becoming increasingly resourceful and determined in their quest to develop properties for an eager public. This search has resulted in a growing demand for methods to remove property restrictions, including easements. In this article, we will explore various approaches to extinguishing an easement and provide clarity on the topic.

Understanding Easements

An easement is defined as “an interest in land in the possession of another which (a) entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists; (b) entitles…protection…against third persons from interference in such use or enjoyment; (c) is not subject to the will of the possessor of the land and (d) is capable of creation by conveyance.”1 Simply put, an easement grants certain rights to a landowner without transferring ownership of the land itself.

Creating an Easement

Easements can be established in four ways: through an express grant in writing, implication from prior use, implication from necessity, or prescription. When the dominant estate (the property benefiting from the easement) is transferred, the easement automatically passes to the subsequent owner through appurtenance clauses, even if the easement is not specifically mentioned in the deed.

Terminating an Easement: Eight Methods

There are eight ways to terminate an easement: abandonment, merger, end of necessity, demolition, recording act, condemnation, adverse possession, and release.

See also  NT1 and NT2 v Google Inc


Any easement can be extinguished if the owner of the dominant estate intentionally abandons their rights to the easement. To prove abandonment, it is necessary to establish both the owner’s intention to abandon the easement and an overt act or failure to act that implies a complete relinquishment of interest in the easement. Mere non-use of the easement is not sufficient to constitute abandonment.


An easement can be terminated through merger when the dominant and servient estates (the property burdened by the easement) come under the ownership of the same person or entity. Complete unity of title is required for merger to occur.

End of Necessity

Easements created out of necessity come to an end when the original necessity disappears. For example, if a landowner subdivides their property and one of the resulting lots becomes landlocked, an easement of access is created to allow the landlocked lot to reach the highway. However, if an alternative means of access becomes available, the original necessity for the easement no longer exists, and the easement is terminated.


An easement in a building or land ceases to exist when the burdened property is completely destroyed. This applies to cases where the easement relies on a specific structure or land feature.

Recording Act

An easement that is not properly recorded before the purchase of the encumbered property does not bind a good faith purchaser for value. However, if the purchaser had actual knowledge or notice of the easement, they are still bound by it.


Using an easement in an unauthorized manner or misusing it does not justify its termination. While such actions may be subject to legal remedies, they do not automatically result in the elimination of the easement.

See also  Acceleration Clauses in Foreclosure Proceedings: New Guidelines


A governmental agency can create or abolish an easement through condemnation. This typically occurs when the government acquires a plot of land subject to an easement and removes the easement through the condemnation process.

Adverse Possession

Under certain circumstances, adverse possession may extinguish an easement. If the burdened property owner fences off an easement for a significant period of time and prevents its use, the easement may be deemed no longer valid.


An easement can be ended by a written release, in which the owner of the easement voluntarily relinquishes all rights and remedies associated with the easement.


The termination of an easement is a complex area of real estate law that often leads to misunderstandings. As the demand for available land increases, easement-related issues have become more prevalent. It is crucial for professionals and clients in the real estate industry to have a solid understanding of the legal basis for terminating easements. By staying informed and seeking expert advice, potential problems can be avoided, and easements can be handled rightly. Exciting times lie ahead for real estate professionals, as our land continues to provide immense opportunities.

Click here to learn more about Garrity Traina


  1. Restatement of Prop. §450 (1944).
  2. 68 N.Y.2d 963, 965, 503 N.E.2d 99, 100, 510 N.Y.S.2d 543, 544 (1986).
  3. Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).
  4. Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d 900, 903 (1997).
  5. Id.
  6. Will v. Gates, 89 N.Y.2d 778, 680 N.E.2d 1197, 685 N.Y.S.2d 900 (1997).
  7. The law requires that such an implied easement be actually necessary for the use and enjoyment of the property, not merely convenient to the owner of the dominant estate. Paine v. Chandler, 134 N. Y. 385 (1892).
  8. 263 N.Y. 63, 188 N.E. 158 (1933).
  9. Webster v. Ragona, 704 A.D.3d 850, 776 N.Y.S.2d 347 (2004).
  10. As the Court of Appeals stated in Simone v. Heidelberg, an encumbrance must be “record[ed] in the servient chain [of title]…so as to impose notice on subsequent purchasers of the servient land.” Simone v. Heidelberg, 9 N.Y.3d 177, 877 N.E.2d 1288, 847 N.Y.S.2d 511 (2007).
  11. Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).
  12. 200 A.D.2d 735, 606 N.Y.S. 913 (2009), accord Zutt v. State, 99 A.D.3d 85, 949 N.Y.S.2d 402 (2d Dept. 2012).
  13. 73 N.Y.2d 622, 543 N.Y.S.2d 15 (1989).
  14. Perhaps the most extreme example ever of satisfying the “hostility” requirement of adverse possession.
  15. Andrews v. Cohen, 221 N.Y. 148, 116 N.E. 862 (1917).
See also  Today in 1988: Apple Files Lawsuit Against Microsoft for Copyright Infringement

Article originally published on Garrity Traina’s website.