An easement is an important property right that can increase the easement holder’s use and enjoyment of his property, therefore also increasing the market value of the property. Easements are used for a variety of purposes. The most common type of easement is for a roadway providing access to the easement holder’s property. In rural areas, easements may be granted for livestock grazing or for access to water.
Unfortunately, it is also relatively easy for an easement holder to lose the easement. One way to lose an easement is by abandonment. A court may rule that an easement has been abandoned if it finds both nonuse of the easement and intent to abandon. While nonuse alone is generally not sufficient, the length of nonuse may be some evidence of intent to abandon.
California law has a procedure to permit an easement owner to preserve an easement that might otherwise be deemed abandoned. Under California Civil Code section 887.060(a), the easement owner may record a notice of intent to preserve the easement.
Another way to extinguish an easement is through adverse possession. In order for an easement to be extinguished through adverse possession, the owner of the property subject to the easement must take some action that is “open and notorious” (obvious to the easement holder), “hostile to the true [easement] owner” (inconsistent with the existence of the easement), continuously for five years. For example, an easement may be extinguished by adverse possession if the owner of the property subject to the easement builds permanent structures on the easement and the easement owner takes no action for five years. In one case, the court found that blocking access to the easement with a gate for five years was sufficient to extinguish the easement.
Once an easement owner becomes aware of some circumstance that is inconsistent with the rights granted by the easement, the owner must take some action to prevent the easement from being extinguished.