Learning Outcomes
After reading this article, you will be able to identify and explain the main legal methods by which rights in real property are terminated. You will understand the principles of forfeiture, merger, abandonment, release, and prescription, and be able to apply these concepts to MBE-style questions involving the end of easements, covenants, and other nonpossessory interests.
MBE Syllabus
For MBE, you are required to understand how and when rights in real property can be terminated. This includes the termination of easements, covenants, and similar interests. For revision, focus on:
- The principal methods of terminating easements: release, merger, abandonment, prescription, and expiration of necessity.
- How covenants and equitable servitudes may be terminated, including by written release, merger, or changed circumstances.
- The effect of forfeiture and laches on property rights.
- The doctrine of merger and its application to nonpossessory interests.
- The requirements for abandonment and the difference between nonuse and intent to abandon.
- The impact of condemnation and destruction on property rights.
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.
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Which of the following will always terminate an easement appurtenant?
- Nonuse for a long period
- Written release by the easement holder to the servient owner
- Sale of the servient estate to a bona fide purchaser
- Mere words expressing intent to abandon
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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?
- The easement is suspended
- The easement is terminated by merger
- The easement continues unaffected
- The easement is transferred to a third party
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Which of the following is NOT a recognized method of terminating a real covenant?
- Written release
- Merger of benefited and burdened estates
- Abandonment by nonuse alone
- Changed neighborhood conditions
Introduction
Rights in real property, such as easements and covenants, are not always permanent. The law provides several mechanisms by which these interests can be terminated, either automatically or by the actions of the parties. Understanding these termination methods is essential for answering MBE questions on property law.
Termination of Easements
Easements may end in several ways, including by express release, merger, abandonment, expiration of necessity, or prescription. The facts of a scenario will determine which, if any, method applies.
Key Term: Easement A nonpossessory right to use another's land for a specific purpose, such as a right of way.
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.
Key Term: Release A written agreement by which the holder of a property right surrenders that right to another party, ending the interest.
Merger
If the same person acquires both the dominant and servient estates in the same interest (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.
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.
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, which ends when access is no longer necessary.
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 the adverse, open, and continuous interference by another for the statutory period.
Condemnation and Destruction
If the servient estate is condemned by eminent domain, the easement is terminated. If the easement relates to a structure that is involuntarily destroyed (e.g., by fire), the easement may also end.
Termination of Covenants and Equitable Servitudes
Covenants and equitable servitudes can be terminated by written release, merger, or changed circumstances that make enforcement inequitable.
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.
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.
Laches and Forfeiture
If a party unreasonably delays enforcing a right and the delay prejudices others, laches may bar enforcement. Forfeiture may occur if a right is lost due to breach of a condition.
Key Term: Laches An equitable defense barring a claim when there has been an unreasonable delay and resulting prejudice.
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.
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, causing a 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 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.
Exam Warning
Nonuse alone does not terminate an easement or covenant. There must be clear evidence of intent to abandon, or adverse action by the servient owner for the statutory period.
Revision Tip
Always check for merger when the same person acquires both the benefited and burdened estates. Merger extinguishes nonpossessory interests.
Key Point Checklist
This article has covered the following key knowledge points:
- Easements may be terminated by written release, merger, abandonment (with intent), expiration of necessity, or prescription.
- Mere nonuse does not end an easement; intent to abandon must be shown by conduct.
- Merger requires ownership of both dominant and servient estates in the same capacity.
- Covenants and equitable servitudes may be terminated by release, merger, or changed circumstances.
- Laches may bar enforcement of rights after unreasonable delay and prejudice.
- Condemnation or destruction of the servient estate can terminate nonpossessory rights.
Key Terms and Concepts
- Easement
- Release
- Merger
- Abandonment
- Easement by Necessity
- Prescription (Termination)
- Covenant
- Equitable Servitude
- Laches
