My neighbor no longer needs an easement and hasn't been using it right for years ... what can be done?

Terminating or extinguishing an easement is highly dependent on the facts and circumstances surrounding the parties use of the land. Easements can be terminated or extinguished by many means such as merger of title, release, abandonment, by the terms of the document, termination of the need, condemnation, mortgage foreclosure, tax sale, and by unwritten means such as non-user/abandonment and adverse possession. Again, depending of the facts surrounding the use of the easement dictates which theory would best suit your situation - especially since there are many different types of easements. 

If there’s an easement agreement, then an easement can terminate either by expiring based on the intent of the parties as indicated in the agreement or by being extinguished by the course of events subsequent to its creation, including a change in the conditions surrounding the use of an easement. "Use of an easement for an unauthorized purpose, or the excessive use or misuse of it, is not sufficient to cause a forfeiture of the easement, unless the misuse of the easement is willful and substantial and not merely minor or technical." 25 Am. Jur. 2d Easements & Licenses § 99 (2007).

However, it should be noted that rather than terminating an easement due to changed conditions, a court may order that it be modified. For example, if an easement is created due to a land-locked parcel of land, but after 20 years the county installs a county road grating access to the once land-locked parcel, then one party could suggest that there is a change in circumstances in an effort to terminate the easement.

Another common way to terminate an easement is called Merger of Title. Merger of Title simply means that the owners of the servient and dominant estate becomes one and the same and as a result the easement is automatically extinguished. This would happen if a person becomes the owner of both the dominant and servient estate. The key to remember is that by definition an easement is an interest in the land of another and since title is merged the easement interest is extinguished.

Termination by Release is where private easements are no longer needed. In general, if the creating document contains no limit as to time, the easement will be perpetual, unless terminated by release or abandonment. In a release, the holder of the dominate estate releases its interest back to the servient estate.

Termination by Vacation/Abandonment most often occurs when a government agency no longer has a particular need for an easement, such as vacating an alley or closing a public road. In Ohio, there’s a specific procedure as to how the easement must be vacated and who takes ownership of the vacated easement.

Termination by Non-User abandonment is more difficult than one may think. Generally, non-use alone is not enough. There must also be intent to terminate the easement. In other words, there must be a relinquishment of possession with an intent to terminate the easement.

Termination by Adverse Possession/Prescription requirements. Just like a squatter can claim ownership of a house, an easement can be destroyed by adverse possession. An easement can be extinguished by the title owner’s obstruction of the easement under the doctrine of adverse possession.

Termination by Estoppel when one party in good faith relies upon the representations bade my another to discontinue the use of an easement. Estoppel is a complex legal doctrine that can prevent someone from denying his own expressed or implied admissions.

As you can tell there are many different theories upon which an Easement can be terminated, but the end result is highly dependent on the underlying facts and circumstances. Be sue to consult with an experienced real estate attorney for your easement rights. Our attorneys are standing by ready to help you terminate your easement.