Easement Balderdash
By Jim Palmer Jr.

In the past three decades of my real estate career I have heard many inquiries from land owners who have been peddled some falsehood concerning their real estate ownership that had them upset enough to call someone in the real estate field for clarification. In a recent example a hopeful land owner was told that an easement that burdened (goes through) their property should no longer be valid because the land owner who benefitted had not used the easement to access their property for a period of over 7 years. The fact that an easement road ran across their land had been an irritant for many years and that fake news from the dubious informant had given them hope that it could be removed. That claim is of course patently false.

 Ingress and egress easements are typically perpetual in duration.  It is a very rare exception when that is not the case.  That means the written and recorded easement lasts forever and runs with the land no matter who owns the property or how many times it has been transferred to a new owner.  An ornery land owner probably could fence off or otherwise block the easement road in order to later use an Adverse Possession Lawsuit to attempt to expunge an easement. But that is not likely to happen for several reasons.  The burden of proof for the claimant to prove they have successfully “openly, notoriously and adversely” blocked this person from that access would likely not pass muster with a judge.  That means that the current owner and previous owners for the past 7 years knew of the burdened property owner’s aggressive intent to eliminate this access and did nothing to stop them.  Secondly, even if the benefitted land owner had a different access to their property, a judge is not likely to take away a property right without very compelling and indisputable evidence.  

An easement is always listed as an exception on the title report of the burdened property.  When the proper process is used to purchase property such a burden is not likely to be missed, unless the purchaser is just not paying attention or they are skipping the professionals or opting to forego title insurance with the proper investigation that entails.  In the example above, the property owner was aware of the easement road right next to their home, but didn’t realize the full implication of that burden until its full use was invoked by a benefitted owner.