Does an Easement Disappear if Omitted from a Deed?

There are many ways an easement may be terminated.  The owner of an easement may expressly release the easement.  A third party may block the easement for twenty years (adverse possession).  The owner of the land “underneath” the easement may acquire the land benefitted by the easement (the doctrine of merger).  The purpose for the easement may be impossible to carry out (the impossibility of purpose doctrine).  Finally, for implied easements created by necessity, the necessity may no longer exist.

Once an easement exists, it remains “appurtenant” to the land it benefits.  The right attaches to and benefits the benefitted parcel, also known as the dominant estate, and runs with the land. This means the easement is not just a personal right but is tied to the property itself. When the dominant estate (benefitted land) is sold or transferred, the appurtenant easement automatically transfers to the new owner.

This principle applies no matter how the easement was created in the first place.

Sometimes easements are referenced in deeds. These easements are types of express easements.  Express easements make life easier for all concerned because they are written and should not need a court order to prove they exist.

Let’s say a deed states the land being conveyed is “subject to” an easement for access to an abutting parcel. The property then passes to two future owners over the next forty years via two deeds, both which include the same “subject to” language.  And let’s say that second future owner decide he or she does not like the easement and re-conveys the land to him or herself or to a third party with the “subject to” language omitted.  Does the omission terminate the easement?

In 1951, New Hampshire adopted the following statute, currently known as RSA 477:26: “In a conveyance of real estate or any interest therein, all rights, easements, privileges and appurtenances belonging to the granted estate or interest shall be deemed to be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary in order for their inclusion to enumerate or mention them either generally or specifically.”

This principle applies even for the owner of the parcel benefitted by the easement. In that situation, the question would be whether the omission constituted a statement in the deed that the conveyance not include the easement.

For assistance with easements or other real estate matters, please contact our office at (603) 856-8411 or at this link.