Nonuse of an Easement vs. Adverse Possession: What is the Difference?
Easements sometimes sit dormant for decades, even centuries. Our office often defends easements created 50, 100 and even 250 years ago and rarely used by the owners and their predecessors in title. Times change, memories lapse, and easement references get dropped from deeds. When that happens, does the holder of the easement lose any rights? How does nonuse of an easement compare with someone blocking an easement for twenty years without the easement holder’s consent?
Easements
An easement is “non-possessory” interest in real estate allowing the holder of the easement (called the dominant estate) to use or access property owned by another (called the servient estate). Easements can be created for various purposes, such as access to a neighboring property, the use of utility lines, or the right to cross a piece of land to reach a public road.
An easement is “nonpossessory” because the holder only has the right to use the property for a particular purpose, while the owner of the servient estate retains ownership and possession of the property, subject to the rights granted by the easement.
Nonuse of Easements
Nonuse of an easement may occur when a person with an easement right chooses not to exercise that right. This choice does not typically result in the loss of the easement. For example, in New Hampshire, RSA 477:26 states: “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.” That said, it is important to review the specific terms and conditions of any agreements or contracts related to the easement, as they may contain clauses addressing the consequences of nonuse.
Adverse Possession
Adverse possession is a legal principle allowing someone to acquire ownership or other rights in real estate through continuous, open, notorious, adverse, and exclusive possession of the property for a specific period without the permission of the owner. “Owner” in this context means the owner of an easement. Therefore, acquiring “title” to an easement by adverse possession means terminating the easement. In effect, the easement is transferred back to the owner of the underlying land.
For the owner of underlying land (the servient owner) to terminate an easement by adverse possession, that person must do something to put the easement owner on notice the servient owner is challenging the easement holder’s rights. For example, installing a wall across the easement area without the consent of the easement holder.
To terminate an easement by adverse possession, the possession must satisfy the following:
Continuous: The person must possess the property without interruption for the entire statutory period, twenty years in many jurisdictions. Again, installing a permanent wall for example.
Open and notorious: The possession must be visible and apparent, not hidden or secret.
Adverse: The possession must be without the owner’s permission and in defiance of their rights. Using the easement area likely is not adverse, but blocking it without permission likely is. (If the servient owner also releases the right to use the easement, then the property right created likely is something other than an easement. It might be a lease or life estate, for example.)
Exclusive: The person must possess the property to the exclusion of others, meaning to the exclusion of the owner of the easement. Again, think of a wall.
Contrasting Nonuse of Easements and Adverse Possession
Nonuse indicates that the easement holder has chosen not to exercise the easement right, but this choice does not typically result in the loss of the easement. Adverse possession, however, can lead to the loss or acquisition of easement rights if the legal requirements are met.
Another difference is the element of consent. In nonuse, the person with the easement right voluntarily decides not to exercise his or her rights. In contrast, adverse possession is an act occurring without the easement owner’s consent and in defiance of their property rights.
Finally, nonuse and adverse possession have different legal implications. While nonuse generally does not affect the legal status of an easement, adverse possession can alter or terminate an easement if the requirements described above are met.
