What is an Easement?

how are easements created and/or terminated?

An easement is the right to cross over, under, or through the property of another person.

how easements are created

There are several methods for creating easements but the two most common ways in which easements are created are by an express act and/or “implication”.
1. Express Easement– An express easement is created by deed, contract, or other written agreement.
2. Implied Easement– An implied easement is created through the circumstances and facts surrounding the use of land which indicates the parties intended for the easement to exist.

terminating an easement

How Can an easement be terminated? Who Can Terminate the Easement? There are four (4) basic ways an easement can be terminated:

  1. Expiration of an Easement: An easement can be terminated by the expiration of an agreed upon time event. For example, there could be an agreement that an easement will last for 10 years at which time the easement will automatically terminate.
  2. Agreement to Terminate an Easement: Some easements are terminated by agreement of the owner of the easement. Termination by agreement happens when the owner expressly conveys the easement back to the grantor.

    For example, if Simon owns an easement over Garfunkel’s land, and Garfunkel requests that Simon release the easement, Simon may then execute the termination agreement and convey the easement back to Garfunkel. Once this agreement is signed by Simon, the easement in land will terminate.
Old abandoned building and rail.

3. Abandonment of an Easement: Easements can be terminated when the owner abandons his right to the easement. Usually, mere nonuse of an easement is not enough to qualify for termination. An easement may be terminated by abandonment only if the owner makes a clear, unequivocal, decisive act to abandon the easement.

What is a decisive act to abandon an easement? A decisive act to abandon an easement could include creating a new alternate road to enter the property or installing fencing or a wall or some other time of barrier across the easement.

4. Merger of Easement and Land: Easements can be terminated by merger. Under the doctrine of merger, if one party acquires the property subject to and benefited by an easement. The easement will have been said to merge with the other rights held by the owner.

This makes sense, because an easement is the right to cross over the property belonging to another person. However, if you own the land, the easement will merge into the land because it is impossible to have an easement over your own property.

Conclusion

Understanding easements and how they affect your rights can be very confusing, in particular easements on shared water wells. So, if you have questions about an easement on your Arizona property then contact the Dunaway Law Group at 480-702-1610 or by sending us a message HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the State of Arizona.

Author: Clint Dunaway

Arizona attorney.