Cancel easement

All real estate delivery deeds contain a heading about easements. A easement is an obligation that the owner of one lot (the serving yard) has to the owner of the other lot (the ruling yard). For example, a right of way. Such an easement can be quite onerous for a property owner. Fortunately, under circumstances it is possible to have an easement lifted by the court. However, this is not easy.

Cancel easement due to unforeseen circumstances

If there are circumstances that the parties did not foresee when the easement was established, the court may cancel or modify an easement. Unforeseen circumstances may include an aggravation of the use of a right of way, such as a division of the servient yard or a change in the activities conducted on the servient yard. A change in the layout of the servient yard can also be an unforeseen circumstance. The requirement for a waiver or change due to unforeseen circumstances is that those circumstances are such that maintaining the easement unchanged would be contrary to reasonableness and fairness.

An interesting question still arises as to what extent an easement granted by statute of limitations may be cancelled or modified due to unforeseen circumstances. In that case, it is necessary to consider what the parties would have taken into account if a deed of settlement had been executed.

Cancel easement for conflict with public interest

Another ground for cancellation of an easement is if maintaining it would be contrary to the public interest. This can be the case, for example, when an urban development plan would be blocked because the pastures to be built on are encumbered with various easements. In that case, the court can also cancel that easement. The requirement is that at least 20 years have passed since the right was established.

Cancel easement in case of impossibility of exercise or lack of interest

It may also be the case that the exercise of the easement has become impossible. For example, if there is a right of way over a plot, but that plot has been permanently flooded. It can also be the case that the owner of the governing property no longer has an interest in exercising the easement. For example, if a public road has been built, and there is no longer a need to use the right of way. In that case, it is also required that it is not likely that the interest in exercising the easement will return. Note: the question here is whether the owner of the prevailing yard has an interest in exercising it. The interest of the owner of the serving yard, is not considered by the court.

Lawyer for cancellation of easement

Would you like advice on removing a right of way, right-of-way or other easement? Then contact the real estate law attorney at Lexys Lawyers.