FAQ's re: Creating and Terminating Private Easements

The following article was prepared by John Murray, an associate attorney with Kohrman Jackson and Krantz P.L.L.

Following last week’s blog post on creating and terminating a public right-of-way on private property, this week we want to address the creation and termination of easements, or private rights-of-way. The law governing the creation and termination of easements is not as straight forward as one would hope, and so the below FAQ format should be helpful for any real property owner hoping to understand the contours of easements and how they affect property rights and ownership.

First, what is an easement?

Ohio law defines an easement as a grant of use on the land of another. In other words, one land owner has the right to use another landowner’s (typically a neighbor’s) property for some purpose. An easement is only a right to use another’s land for some limited purpose and does not give the easement holder a right to possess the neighbor’s land or use it for any whim and desire. The property on which the easement is located is often called the “servient estate” because it serves, or is burdened by, the neighboring property which holds the easement. The neighboring property which holds the easement, or has the right to use the easement, is called the “dominant estate” because it benefits from the easement.

A classic example of an easement between neighboring business owners is the shared use of a parking lot that is located on one business owner’s land. That business owner, we’ll call him AlphaCo, would grant to the neighboring business owner, we’ll call her BetaCo, a right to use the parking lot for the limited purpose of customer parking. If so limited, the easement would not allow BetaCo to use the parking lot for an outdoor concert, art fair, or a private cookout for her and her friends.

How are easements created?

Under Ohio law, easements are created by one of three general events or actions. First, an easement may be created by an express grant or agreement. In an express grant, the owner of the servient estate conveys to the owner of the dominant estate a right to use his or her land for some limited purpose. Importantly, an express easement grant cannot be an oral agreement; it must be expressed in writing, such as in a deed, lease, or other formal conveyance that is recorded in the office of the county recorder where the servient estate is located.

Second, an easement may be created by implication, which means that it is created by special circumstances that show an easement exists even though an express grant was never made. The key factor in an implied easement is the determination that without the easement, the dominant estate has no beneficial use to the landowner. For example, where one landowner is landlocked by a neighboring landowner and must go through the neighbor’s land to access any public road or street, the landowner may claim an implied easement to cross her neighbor’s land. Without the easement, the landowner could not travel to or from her property, which would render the land valueless.

The third general way an easement can be created under Ohio law is by estoppel. Easement by estoppel exists when one landowner promises a neighbor that the neighbor may use the landowner’s property for some limited purpose, the neighbor spends money or takes other action in reliance on that promise, and then the landowner revokes his promise and the neighbor is consequently harmed. Where such circumstances exist, the courts will not allow the landowner to revoke his promise or deny that he granted an easement.

If I have granted an easement to a neighbor, how can I terminate that easement?

An easement that has been created by an express grant, such as between AlphaCo and BetaCo above, may be terminated in a several ways. The easiest way to terminate such an easement is simply by agreeing with the easement holder to end the easement. The parties to an easement may always agree to terminate the easement. This may be done prospectively by setting a time limit on the easement when the easement is created, say ten years, or may be terminated at any time if the subservient and dominant estate holders mutually agree to end the easement. Similar to the creation of an easement, the termination of an easement also needs to be in writing and recorded in the county recorder’s office so that all future buyers of either the servient or dominant estate know that the easement has been removed.

What if the easement holder has not actually used the easement for a very long time, can an easement be terminated by non-use?

When the holder of an easement completely stops using the easement for an extended period of time, the easement may be extinguished by “abandonment.” Abandonment is proven by showing that the easement holder has not used the easement for an extended period of time (typically twenty-one years or more) and has also demonstrated intent to abandon the easement. Intent can be demonstrated by affirmative and unambiguous actions or statements that the easement holder desires to give up the easement, such as a change of the dominant estate’s property that would render the easement completely inaccessible.

What if there are certain conditions on the use of the easement that have gone unfulfilled?

Where an easement is granted in exchange for an obligation that the easement holder perform some duty or give the servient estate some benefit, the easement may be terminated if the condition is not met, but only if the grant unambiguously gives the servient estate the right to terminate upon the failure of the obligation. For example, if AlphaCo granted an easement to BetaCo on the condition that BetaCo pays a portion of AlphaCo’s property taxes, and the grant gave AlphaCo an explicit termination right upon BetaCo’s non-performance, and BetaCo fails to pay those taxes, AlphaCo may terminate the easement. The key, however, is that the instrument must unambiguously state that the servient estate has the power to terminate the easement if the condition goes unfulfilled. In Gallagher v. Lederer, 102 N.E. 2d 272 (1st Dist. 1950), an Ohio court held that it will not read into the grant a right to terminate upon a failed condition unless the language in the grant clearly states such right. Furthermore, the failure to satisfy a condition must be deliberate and continued in order to trigger a termination right. Occasional inadvertent neglect will not be enough under Ohio law.

But the party that upholds its obligations under the express grant may always sue the non-performing party under a breach of contract theory. Several Ohio courts have held that the breach of an easement is analogous to a breach of a contract, and the non-breaching party may sue for damages or seek an injunction if damages are held to be insufficient.

What if the easement holder uses the easement for a purpose not stated in the grant?

If an easement holder attempts to enlarge, abuse, or misuse an easement, the typical remedy is injunction (i.e., the servient estate owner can get a court order forcing the dominant estate holder to stop misusing the easement). Misuse may also trigger a right to terminate an easement, however, if the misuse is excessive or substantial. Ohio courts have held that a slight change in use is not enough to trigger a right to terminate. See Cleveland v. Clifford, 2003 Ohio 1290 (9th Dist. 2003) (refusing to extinguish a “drive easement” where the easement holder used it to park cars).

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