PastPaperHero | Rights in real property

Learning Outcomes

This article explains termination of rights in real property for MBE purposes, including:

Identifying and explaining how easements, real covenants, equitable servitudes, profits, and licenses may be extinguished by release, merger, abandonment, prescription, expiration, condemnation, destruction, estoppel, or fulfillment of stated conditions.
Distinguishing true termination of a nonpossessory interest from situations where the right persists but becomes unenforceable in equity because of laches, changed circumstances, waiver, or other defenses.
Analyzing fact patterns that test merger requirements, abandonment versus mere nonuse, and the elements of termination by prescription or expiration of necessity.
Evaluating when easements by necessity, implied easements, and express easements end, and how courts allocate risks when the servient estate is condemned or destroyed.
Comparing the termination and modification of covenants and equitable servitudes in subdivisions and common‑interest communities, including effects of widespread violations and amendments under recorded declarations.
Applying these doctrines to MBE-style questions to determine who holds the benefit and burden at each stage of a timeline, what events have legal termination consequences, and which remedies remain available.

MBE Syllabus

For the MBE, you are required to understand how and when rights in real property can be terminated, with a focus on the following syllabus points:

Principal methods of terminating easements: written release, merger, abandonment, prescription, estoppel, stated conditions, and expiration of necessity.
Termination of covenants and equitable servitudes, including by written release, merger of benefited and burdened estates, abandonment, changed neighborhood conditions, and expiration of stated time limits.
The effect of forfeiture and laches on the enforcement of property rights, especially restrictions on land use.
The doctrine of merger and its application to nonpossessory interests (easements, covenants, equitable servitudes, and profits).
Requirements for abandonment and the difference between mere nonuse and conduct evidencing an intent to abandon.
The impact of condemnation and destruction of the servient estate on easements, profits, and restrictions.
Distinguishing true termination of the right from situations where the right still exists but is no longer enforceable in equity.
Effects of termination and modification of restrictions in common‑interest communities and implied reciprocal servitudes.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following will always terminate an easement appurtenant?
1. Nonuse for a long period
2. Written release by the easement holder to the servient owner
3. Sale of the servient estate to a bona fide purchaser
4. Mere words expressing intent to abandon
If the owner of both the dominant and servient tenements acquires both estates in fee simple, what is the effect on an existing easement appurtenant?
1. The easement is suspended
2. The easement is terminated by merger
3. The easement continues unaffected
4. The easement is transferred to a third party
Which of the following is NOT a recognized method of terminating a real covenant?
1. Written release
2. Merger of benefited and burdened estates
3. Abandonment by nonuse alone
4. Changed neighborhood conditions
A recorded covenant prohibits commercial use in a 40‑lot subdivision. Thirty‑nine owners have built and operate businesses on their lots without objection. The last owner still uses his lot as a residence. He now wants to open a store; neighbors sue to enforce the covenant. Which is the strongest argument for the owner?
1. The covenant was personal and never ran with the land
2. The covenant has been terminated by abandonment or waiver
3. The covenant is void under the Rule Against Perpetuities
4. The covenant automatically expired when the first business opened

Introduction

Rights in real property, such as easements and covenants, are not always permanent. Some end automatically when a stated event occurs; others can be cut off by the acts of the parties or by adverse use. For MBE purposes, your goal is to recognize how a particular right ends and when the right is truly extinguished versus when it simply becomes unenforceable in equity.

A common exam pattern involves a neighbor attempting to stop a new use (e.g., commercial activity) by invoking an old easement or covenant. Often, the key to the problem is whether that easement or covenant has already been terminated by release, merger, abandonment, prescription, changed circumstances, or another doctrine.

Key Term: Easement
A nonpossessory right to use another's land for a specific purpose, such as a right of way.

The main nonpossessory rights you must handle are:

Easements and profits (use rights in another’s land)
Covenants and equitable servitudes (restrictions or obligations tied to land use)
Licenses (mere permissions, generally revocable)

Each has its own methods of termination, but there is significant overlap. Many end the same way as easements: by release, merger, abandonment, prescription, condemnation, destruction, or changed circumstances.

A critical theme is the difference between:

True termination of the property right (the easement, covenant, or profit no longer exists at all), and
Loss of enforceability in equity (for example, when injunctive relief is denied because of laches or changed circumstances, even though the covenant technically still exists in the deeds).

On MBE questions, always ask:

Who currently holds the benefit and the burden?
Has any event occurred that necessarily ends the right (e.g., merger, expiration of a condition, ending of necessity, successful prescription)?
If not, is the issue really about remedy (damages vs injunction) or about equitable defenses (laches, estoppel, unclean hands), which affect enforcement rather than existence?

Termination of Easements

Easements may end in several ways, including by express release, merger, abandonment, expiration of necessity, prescription, estoppel, condemnation, destruction, or the fulfillment of a stated condition. The particular facts of a scenario will determine which, if any, method applies.

A useful mnemonic for the main methods of ending an easement is often taught as END CRAMP (Estoppel, Necessity, Destruction, Condemnation, Release, Abandonment, Merger, Prescription).

Remember that an easement can be created to last for:

A fixed time period (“for 20 years”),
So long as a stated use continues,
Or in perpetuity (no time limit stated).

When the stated time limit runs, or the stated resolving condition occurs, the easement normally ends under the “stated condition” category below.

Express Release

An easement can be terminated by a written release from the easement holder to the servient owner. The release must comply with the Statute of Frauds if the easement was required to be in writing (which is almost always the case when the easement is to last more than one year).

Key Term: Release
A written agreement by which the holder of a property right surrenders that right to another party, ending the interest.

Key points for MBE purposes:

The release must be executed by the holder of the easement, not the servient owner.
It must identify the easement and the land burdened.
Once validly released, the easement is extinguished and does not revive.
Because a release is a conveyance of an interest in land, it must meet any state law formalities for a deed (e.g., signed, often notarized, and delivered).
Recording the release is not strictly required to terminate the easement between the parties, but failure to record can matter as to later bona fide purchasers.

Releases can be:

Total: terminating the easement entirely, or
Partial: e.g., reducing the scope or relocating the easement if both parties agree in writing.

If you see a signed, written document where the easement holder “releases, quitclaims, and forever discharges” the easement, treat that as a termination by release.

Stated Conditions

Sometimes the grant creating the easement itself contains a condition that will end the easement automatically when a specified event occurs.

Key Term: Stated Condition
A condition written into the instrument creating an easement or servitude that provides for automatic termination upon the occurrence of a specified event.

Examples:

“An easement for ingress and egress so long as repairs are maintained on the road.”
“An easement until the land is no longer used for residential purposes.”
“An easement while B owns the adjacent parcel.”
“A right-of-way for a period of 30 years.”

Once the condition occurs (road no longer maintained, property converted to commercial use, B sells the parcel, the 30 years expire), the easement ends without the need for a separate release.

Exam tips:

This is analogous to a defeasible fee. “So long as” and “until” usually indicate that termination is automatic when the condition occurs.
If the grant is instead phrased more like a condition subsequent (“provided that,” “on condition that the owner may revoke”), courts sometimes treat the easement as continuing until the holder of the right to terminate actually exercises that right. On the MBE, however, most easement conditions are tested as automatic terminations.
Do not confuse a stated condition ending the easement with breach of covenants about maintenance. Failure to comply with a maintenance covenant might give rise to damages or a right to repair and charge costs, but it will not usually end the easement unless the creation instrument clearly ties continuation of the easement to that condition.

Merger

If the same person acquires both the dominant and servient estates in the same estate (usually fee simple), the easement is extinguished by merger. The easement will not revive if the estates are later separated again.

Key Term: Merger
The doctrine by which a nonpossessory interest (like an easement) is terminated when the same person acquires both the benefited and burdened estates in the same capacity and for interests of equal or greater duration.

Details that matter on the exam:

Complete identity of title and duration is required. The owner must hold both the dominant and servient estates:
- In the same type of estate (e.g., fee simple and fee simple), and
- In the same capacity (e.g., both as an individual, not one individually and one as trustee).
If the dominant owner only acquires a short lease of the servient estate, that is not enough to extinguish an easement appurtenant to a fee.
Likewise, if the owner acquires only a partial interest in the servient estate (e.g., a one‑half tenancy‑in‑common interest), there is no complete common ownership and thus no merger.
Once merger occurs, no automatic revival: if the unified owner later sells off one parcel, a new easement must be created if continued use is desired.

Note that merger applies to any nonpossessory interest that requires separate benefited and burdened estates:

Real covenants and equitable servitudes (once the same person owns both benefit and burden, the restriction is extinguished),
Profits appurtenant,
Certain options or rights of first refusal tied to land.

Worked Example 1.1

A owns Blackacre, which is subject to a right-of-way easement in favor of B. B gives A a signed, written document stating that B "hereby releases all rights in the easement." Is the easement terminated?

Answer:
Yes. A written release by the easement holder to the servient owner, complying with the Statute of Frauds, terminates the easement. Once extinguished, the easement does not revive on later sale of either parcel unless a new easement is granted.

Worked Example 1.2

C owns two adjacent parcels, Parcel 1 (dominant) and Parcel 2 (servient), with an easement appurtenant for access. C sells Parcel 1 to D but retains Parcel 2. Does the easement continue?

Answer:
Yes. The easement appurtenant passes automatically to D as the new owner of the dominant estate. The easement is not terminated unless C had previously acquired both parcels in the same interest (for example, both in fee simple), causing a merger. A temporary leasehold in one parcel would not be enough to trigger merger.

Worked Example 1.3

E has an easement to use a path across F's land. E stops using the path for 20 years but does nothing else. F blocks the path with a locked gate and E does not object. Has the easement ended?

Answer:
Possibly. Mere nonuse is not enough for abandonment, but if F's blockage is open, adverse, and continuous for the statutory period, the easement may be terminated by prescription because E failed to assert the right within the limitations period.

Worked Example 1.4

G grants H an easement “to use the driveway across Blackacre until H sells her adjacent parcel.” H later sells the parcel to J, who continues to use the driveway. G sues to stop J’s use. Who prevails?

Answer:
G. The easement was created with a stated condition that it would last only until H sold her parcel. When H sold to J, the condition occurred and the easement terminated automatically. J cannot rely on the terminated easement.

Worked Example 1.5

Developer records a subdivision plan restricting all lots to “single-family residential use only.” Over 30 years, the area outside the subdivision becomes heavily commercial, but every lot inside remains residential. An owner inside the subdivision wants to build a store and argues that changed circumstances have terminated the restriction. Is the restriction still enforceable?

Answer:
Yes. The key question is whether the property subject to the restriction still benefits from it. Because the subdivision itself remains residential, owners still benefit from limiting uses to residential purposes. Change outside the subdivision alone is not enough to terminate the restriction.

Worked Example 1.6

A subdivision has a recorded covenant prohibiting detached storage sheds. Over time, most owners build prominent sheds and no one complains. A new owner, K, builds a similar shed and is immediately sued by a neighbor to enforce the covenant. Can K raise abandonment or laches?

Answer:
Very likely. The widespread, long-term violation of the “no sheds” covenant and the consistent failure to enforce it suggest abandonment or waiver by the beneficiaries. At minimum, laches may bar enforcement against K because of the neighbors’ prolonged inaction and K’s reliance on the general pattern of noncompliance.

Worked Example 1.7

A owns Lot 1 (servient) in fee simple. B owns neighboring Lot 2 (dominant) in fee simple with a recorded right‑of‑way over Lot 1. B later buys a one‑half undivided tenancy‑in‑common interest in Lot 1 from A. A retains the other one‑half interest. Has the easement terminated by merger?

Answer:
No. Merger requires complete common ownership of title in the dominant and servient estates. Because A still owns a one‑half interest in the servient parcel, B does not own both parcels in the same estate, and the easement is not extinguished.

Worked Example 1.8

Owner O sells the back portion of her land to D, leaving D landlocked. An easement by necessity arises over O’s remaining land. Ten years later, the city condemns a strip of O’s land and builds a public road that borders D’s parcel, giving D direct access. D nevertheless insists on continuing to use the old path across O’s land. Can O stop D?

Answer:
Yes. An easement that arose solely by necessity ends automatically once the necessity ceases—here, when D obtains reasonable access to a public road directly. The easement by necessity is terminated even without any action by O.

Abandonment

An easement may be terminated by abandonment if the holder demonstrates, by physical action, a clear intent to relinquish the right permanently. Mere nonuse is not enough; there must be conduct indicating intent to abandon.

Key Term: Abandonment
The intentional relinquishment of a property right, shown by conduct indicating the holder will never use the right again.

Important distinctions:

Nonuse alone is never sufficient to show abandonment for easements.
Courts look for physical acts inconsistent with future use, such as:
- Removing railroad tracks from a right-of-way and selling the materials.
- Constructing a permanent building that blocks the easement on the dominant land (e.g., building a house that covers the driveway access to the servient parcel).
- Recording a document clearly disclaiming the right (even if not a formal release).
Words expressing an intent to abandon are generally not enough without conduct, but they can be used as evidence to interpret ambiguous conduct.

The focus is on intent plus action—words or long nonuse may be evidence but are not enough by themselves.

Contrast:

Abandonment: Voluntary conduct by the easement holder, showing an intent to give up the right.
Prescription: Adverse conduct by the servient owner, plus inaction by the easement holder for the statutory period.

Also distinguish abandonment from misuse or surcharge (use beyond the easement’s scope). Misuse allows the servient owner to seek an injunction and damages, but does not, by itself, terminate the easement.

Expiration of Necessity

An easement by necessity ends automatically when the necessity ceases (for example, when access to a public road becomes available by another route).

Key Term: Easement by Necessity
An easement implied by law when land is landlocked after severance of title, which ends when access is no longer necessary.

Points to remember:

The rule applies only to easements that arose from necessity in the first place.
Easements implied from prior use do not automatically end when the use becomes less necessary.
Once a new reasonable access route exists (e.g., the landlocked parcel gains frontage on a newly built public road), the necessity-based easement ends.
The new access need not be absolutely identical in convenience; it must be a reasonably adequate legal access. However, if the “alternative” requires trespassing over another’s land or relies on revocable permissions, the necessity may still exist.

On MBE questions, read the facts carefully to see how the easement arose. Only rights that were created because of necessity (not because of prior use or express grant) terminate automatically when necessity ends.

Prescription

If the servient owner interferes with the easement in a way that would give rise to a cause of action, and the easement holder fails to act for the statutory period, the easement may be terminated by prescription.

Key Term: Prescription (Termination)
The loss of a property right due to adverse, open, and continuous interference by another for the statutory period.

For termination by prescription:

The servient owner must adversely block or interfere with the easement (e.g., fencing off the roadway, locking a gate, building a wall).
The interference must be:
- Open and notorious (visible; not secret),
- Adverse (without the easement holder’s permission), and
- Continuous for the full statutory period.
If the easement holder does not sue for an injunction or damages within that period, the right is lost as though the servient owner had acquired the opposite right by prescription.

Contrast with abandonment:

Abandonment focuses on the easement holder’s intent and conduct.
Prescription focuses on the servient owner’s adverse conduct plus the easement holder’s failure to act.

Exam details:

The prescriptive period is measured from the first actionable interference (e.g., when the gate is first locked against the easement holder), not from the original creation of the easement.
Occasional successful uses by the easement holder (e.g., climbing the fence occasionally) may interrupt the prescriptive period and prevent termination.
Friendly accommodations (“I’ll let you keep the fence there for now”) can transform what appears adverse into a permissive occupation, defeating prescription.

Estoppel

An easement may also end if the servient owner reasonably relies on the easement holder’s assurances that the easement will no longer be used or enforced.

Key Term: Estoppel (Easements and Servitudes)
A doctrine preventing a right holder from asserting the right when another has reasonably and detrimentally relied on the holder’s representation that the right will not be enforced.

Classic pattern:

Easement holder says, “You can go ahead and build across the right-of-way; I won’t use it again.”
Servient owner spends substantial money building a garage across the easement.
A court may hold the easement holder estopped from asserting the easement, effectively extinguishing it.

Key features:

There must be a representation or conduct by the easement holder (or covenant beneficiary) indicating the right will not be used or enforced.
The other party must reasonably rely on that representation.
The reliance must be detrimental (e.g., substantial expenditures, irreversible changes).

Estoppel is especially important when a formal written release is lacking, but real reliance and substantial expenditures are present. Courts sometimes describe the result as creating an “easement by estoppel” in favor of a licensee or, conversely, terminating an existing easement by estoppel when the holder suggests it will not be used.

Condemnation and Destruction

If the servient estate is condemned by eminent domain, the easement is terminated as against the condemning authority. The easement holder may be entitled to a share of the condemnation award, depending on state law and the nature of the interest.

If the easement relates to a structure that is involuntarily destroyed (e.g., by fire), the easement may also end when the structure is gone.

Key Term: Condemnation
The exercise of the government’s power of eminent domain to take private property for public use, usually with payment of just compensation.

Key points:

Condemnation of the servient land extinguishes the easement; some jurisdictions compensate the easement holder for the value of the lost right as part of the just compensation award.
Partial condemnation may leave the easement intact over the uncondemned portion, or may effectively destroy the easement’s usefulness; in close cases, the question becomes one of fact.
Involuntary destruction of the servient structure (e.g., a fire destroys a building containing an easement stairway) usually ends an easement tied to that structure because the physical subject of the easement no longer exists.
Voluntary destruction (e.g., owner demolishes the building) typically does not terminate an easement; the servient owner cannot destroy the easement unilaterally by tearing down improvements. The easement attaches to the land, not particular improvements, unless the instrument clearly limits it to a specific structure.

Destruction of the Servient Estate and Necessity

Sometimes destruction and necessity interact. For example, if an easement by necessity ran through a building that later burns down, the easement still exists; the holder may be entitled to a different route across the land. But if an express easement was limited to using a particular stairway or elevator, that limitation may mean the easement ends when the structure is involuntarily destroyed.

Termination of Covenants and Equitable Servitudes

Covenants and equitable servitudes are promises regarding land use that may bind successors.

Key Term: Covenant
A written promise concerning the use of land that may bind successors if certain requirements are met.

Key Term: Equitable Servitude
A restriction on land use enforceable in equity, even against successors, if notice and intent are present.

They can be terminated or rendered unenforceable in several ways, which significantly overlap with easement termination:

Written release
Merger of benefited and burdened estates
Expiration of stated duration
Abandonment/waiver
Changed circumstances
Condemnation or destruction
Equitable defenses such as laches and unclean hands

On the MBE, questions often use “covenant,” “equitable servitude,” and even “servitude” somewhat loosely. For termination issues, the exam rarely turns on the technical distinction between a real covenant (legal damages remedy) and an equitable servitude (injunction). Instead, focus on:

Whether the promise still provides a substantial benefit to the benefited land, and
Whether any doctrine (merger, release, abandonment, changed circumstances, laches, or forfeiture) has cut off enforcement.

Release and Merger

A written release by the beneficiary of the covenant to the owner of the burdened land will terminate the covenant or servitude. The Statute of Frauds generally applies.
Courts treat such releases similarly to releases of easements: they must be in writing (assuming the covenant/servitude is within the Statute of Frauds), signed by the party holding the benefit, and often recorded to protect against bona fide purchasers.
Merger occurs when one person comes to own both the benefited and burdened parcels in the same estate. The restriction then has no function and is extinguished, similar to easement merger.

Because a covenant or servitude is a promise about how one parcel will be used for the benefit of another, once a single owner holds both parcels in the same estate, there is no “other” parcel left to benefit. If that owner later sells one parcel, the restriction must be recreated if it is to continue.

Abandonment and Waiver

Covenants and equitable servitudes may effectively cease to be enforceable if the beneficiaries’ conduct demonstrates an intent to abandon or waive enforcement.

For abandonment:

Courts look for a pattern of violations of the restriction within the area, coupled with a systematic failure to enforce.
Isolated or minor violations are not enough; there must be so much noncompliance that enforcement would be inequitable.

Indicators include:

Many owners in the subdivision openly violating the restriction (e.g., numerous detached sheds despite a “no shed” covenant),
Long‑term inaction by the association or neighbors despite knowledge of violations,
Acquiescence in violations that are as serious as or more serious than the challenged violation.

Waiver can occur when:

The beneficiary intentionally chooses not to enforce the restriction in particular cases, leading others reasonably to rely on that non-enforcement. For example, if a homeowners’ association repeatedly approves two‑story additions despite a “one‑story only” covenant, it may be held to have waived the restriction.

Unlike easements, abandonment of covenants usually turns on the behavior of many owners in the neighborhood, not just one party.

Changed Circumstances

If the character of a neighborhood changes so substantially that the purpose of a covenant or servitude can no longer be achieved, a court may refuse to enforce it.

Key Term: Changed Circumstances
A doctrine under which courts decline to enforce a servitude when changes in the area are so significant that the original purpose of the restriction can no longer be accomplished.

Key MBE points:

The change must affect the area subject to the restriction itself, not just the surrounding properties.
The question is: Does the property still receive some substantial benefit from the restriction?
- If yes, the servitude is usually enforced.
- If no, a court may terminate or decline to enforce it.

Examples:

A subdivision was originally entirely residential with a “no commercial use” restriction. Over time, the surrounding main roads become heavily commercial, but the subdivision itself remains residential.
- Residents still benefit from the restriction (less traffic, noise), so courts generally continue to enforce it despite commercial activity outside the subdivision.
If, in contrast, nearly every lot in the subdivision has been converted to commercial use with no objection, so that the “residential only” restriction plainly no longer protects anyone’s residential environment, a court may find changed circumstances or abandonment and refuse to enforce the restriction at all.

Laches and Forfeiture

Key Term: Laches
An equitable defense barring a claim when there has been an unreasonable delay and resulting prejudice.

Laches may bar enforcement of a covenant or equitable servitude if:

The plaintiff waits an unreasonably long time to sue, and
The defendant has changed position in reliance on the delay (e.g., completed expensive construction, or bought the land assuming the covenant would not be enforced).

Because laches is an equitable defense, it applies primarily to suits seeking injunctive relief. It does not necessarily bar a claim for legal damages for past violations, although often such claims are blocked by statutes of limitations instead.

Key Term: Forfeiture
The loss of a property right or estate because a condition attached to that right has been breached or a required act has not been performed.

Forfeiture can occur:

Under defeasible fees (“to A, but if alcohol is sold, then to B”).
Under leases with right-of-entry clauses allowing the landlord to terminate for specified breaches.
Under covenants where the deed expressly provides that violation results in reversion or re-entry.

On the MBE, be careful to distinguish:

Termination of a present estate (fee simple determinable, fee simple subject to condition subsequent, life estate) by breach of conditions, from
Termination of nonpossessory rights (easements and servitudes) by release, merger, abandonment, etc.

Exam tip:

Language like “if alcohol is ever sold on the premises, grantor may reenter and retake” usually creates a fee simple subject to condition subsequent with a right of entry (a possessory estate that can be terminated).
Language like “lot shall never be used for commercial purposes” without forfeiture language is typically a covenant or equitable servitude, not a defeasible estate. Breach gives rise to damages or an injunction, but not an automatic loss of title.

Condemnation, Destruction, and Common-Interest Communities

Condemnation and destruction affect covenants and servitudes much like easements:

Condemnation: If the government condemns the burdened land, restrictions tied to that land are generally extinguished, and compensation may reflect the impact on both burdened and benefited owners. The covenant is not enforceable against the government unless it expressly agrees to take subject to the restriction.
Destruction: If all structures subject to a detailed use restriction are involuntarily destroyed (for example, all homes in a beachfront row are wiped out by a hurricane), some courts may treat that as grounds to reconsider enforcement or to find termination under doctrines of impossibility or changed circumstances, depending on the facts and governing documents.

Key Term: Implied Reciprocal Servitude
An equitable servitude imposed on lots within a subdivision as part of a common plan or scheme, even if a particular owner’s deed does not expressly mention the restriction, so long as there is notice.

In common-interest communities (condominiums, planned subdivisions), restrictions are often set out in a recorded declaration. These are usually treated as equitable servitudes:

Key Term: Common-Interest Community
A real estate development (such as a condominium, cooperative, or planned subdivision) in which owners are bound by recorded covenants to pay assessments and comply with use restrictions enforced by an owners’ association.

Key points:

The declaration and any recorded plats or maps typically create a network of equitable servitudes (e.g., residential‑only use, architectural controls, pet limits).
They can be amended or terminated according to the rules in the declaration or applicable statutes (often requiring a supermajority vote).
Rules adopted later by the association’s board are usually valid if they are:
- Consistent with the recorded declaration and bylaws, and
- Reasonably related to a legitimate purpose of the community (e.g., safety, aesthetics, property values).
Equitable defenses (laches, unclean hands, estoppel, changed circumstances) can still limit enforcement, even when a technical violation of the declaration has occurred.

Licenses and Profits: Termination in Comparison

Key Term: License
A revocable privilege to enter another’s land for a specific purpose, which does not create an interest in land and is generally terminable at will.

Licenses terminate:

At the licensor’s will (subject to contract damages if revocation breaches a contract),
On the licensor’s death,
On transfer of the servient land, and
When the licensee attempts to transfer the license (in many jurisdictions, such an attempted transfer itself revokes the license).

Key Term: Irrevocable License
A license that, because of estoppel or because it is coupled with an interest, cannot be revoked at will and is protected much like an easement during its term.

Some licenses become irrevocable temporarily:

By estoppel: where the licensee spends substantial money or labor in reasonable reliance on the license (e.g., constructing a driveway after an oral permission).
When coupled with an interest: for example, a buyer’s right to enter to remove purchased goods, or a former tenant’s right to reenter to remove fixtures within a reasonable time after the tenancy ends.

These terminate when the related interest ends or when the reliance has effectively been compensated (under some approaches).

Key Term: Profit
A nonpossessory right to enter another’s land and remove something from it, such as minerals, timber, or game.

Profits terminate in the same ways as easements:

Release, merger, abandonment, prescription, condemnation, destruction, or fulfillment of a stated condition.

Additional detail regarding profits:

A profit may be terminated if its holder overburdens the servient estate beyond what was contemplated (e.g., bringing heavy industrial logging equipment onto land originally used only for small‑scale cutting), especially if the misuse cannot be remedied by limiting use.
Otherwise, excessive use normally leads to injunction and damages, not automatic termination.

Worked Example 1.9

A subdivision is burdened by a recorded “residential use only” covenant. Over 40 years, all lots facing the main highway have been rezoned commercial, and every such lot now contains a gas station, fast‑food restaurant, or similar business. The interior lots, away from the highway, remain single‑family homes. An owner of a highway‑front lot seeks to invalidate the covenant as to her lot based on changed circumstances. Likely result?

Answer:
A court is more likely to find changed circumstances as to the highway‑front lots than as to the entire subdivision. Because the covenant no longer provides a realistic residential benefit for those lots—given universal commercial use along the highway—it may be terminated or not enforced there, even while remaining enforceable for the interior residential lots that still benefit from the restriction.

Worked Example 1.10

Owner orally tells Neighbor: “You can build your driveway across the edge of my lot; I’ll never complain.” Relying on this, Neighbor spends $30,000 constructing the driveway entirely on Owner’s land. Five years later, after a dispute, Owner fences off the driveway and sues Neighbor for trespass. Can Neighbor successfully resist?

Answer:
Yes. The oral permission created a license that, because Neighbor invested substantial money in reliance, became irrevocable by estoppel. Courts often protect such reliance either as an irrevocable license or as an “easement by estoppel,” preventing Owner from revoking use of the driveway at least for as long as necessary to protect Neighbor’s investment.

Exam Warning

Nonuse alone does not terminate an easement or covenant. There must be clear evidence of intent to abandon (often physical acts) or adverse action by the servient owner for the statutory period to support termination by prescription.

Revision Tip

Always check for merger when the same person acquires both the benefited and burdened estates in the same estate and capacity. Merger extinguishes nonpossessory interests and they do not automatically revive if the estates later separate.

Key Point Checklist

This article has covered the following key knowledge points:

Easements may be terminated by written release, fulfillment of a stated condition, merger, abandonment (with intent), expiration of necessity, prescription, estoppel, condemnation, or destruction.
Merger requires that one person hold both the dominant and servient estates in the same capacity and with interests of equal or greater duration; once merger occurs, the easement does not revive on later severance.
Mere nonuse does not end an easement; intent to abandon must be shown by conduct, and termination by prescription requires adverse, open, and continuous interference for the statutory period.
Easements by necessity end automatically when the necessity ceases, but implied easements from prior use do not automatically terminate when use becomes less necessary.
Covenants and equitable servitudes may be terminated by written release, merger, abandonment or waiver, fulfillment of a stated time limit, condemnation, destruction, or changed circumstances that destroy the benefit of the restriction.
The changed circumstances doctrine focuses on whether the property still benefits from the restriction; changes outside the restricted area alone usually do not suffice, but radical changes to the restricted area itself may.
Laches and other equitable defenses (such as unclean hands or estoppel) may bar enforcement of restrictions even when the right technically still exists.
Forfeiture of possessory estates (defeasible fees, leaseholds) must be distinguished from termination of nonpossessory rights; covenant language does not automatically create a defeasible estate.
Licenses are generally revocable at will and terminate on death or conveyance, unless made temporarily irrevocable by estoppel or coupled with an interest.
Irrevocable licenses and easements by estoppel arise when a licensee reasonably relies on a permission and invests substantial money or labor; such rights are protected similarly to easements for a limited time.
Profits terminate in largely the same ways as easements: release, merger, abandonment, prescription, condemnation, destruction, or satisfaction of stated conditions, and may also be cut off for overburdening misuse.
In common‑interest communities, recorded declarations create equitable servitudes that can be modified or terminated according to their terms, but are also subject to equitable defenses and changed‑circumstances analysis.
Implied reciprocal servitudes arise from a common plan or scheme and bind later purchasers with notice; they are terminated by the same doctrines as other equitable servitudes.

Key Terms and Concepts

Easement
Release
Stated Condition
Merger
Abandonment
Easement by Necessity
Prescription (Termination)
Covenant
Equitable Servitude
Changed Circumstances
Laches
Forfeiture
Estoppel (Easements and Servitudes)
Condemnation
License
Irrevocable License
Profit
Implied Reciprocal Servitude
Common-Interest Community

Rights in real property - Termination