How to extinguish an easement

Introduction

An easement is a right that a property owner has to some use of the (usually adjoining) property of another – for example, a right of way such as a driveway. There are four ways in which an easement may be extinguished:

• by surrender
• by merger
• by court order under the PROPERTY LAW ACT 1952
• on the occurrence of an agreed event

This area has its own special terminology:

• The person who enjoys the easement over the other person’s property is called the "dominant owner", and that person’s land is called the "dominant tenement".
• The land subject to the easement is called the "servient tenement", and the owner of that land is referred to as the "servient owner".

Surrender

The registered proprietor of an easement (the dominant owner) may surrender an easement by executing a Memorandum of Transfer of it to the registered proprietor of the servient tenement (see How to create an easement). This is done through the local office of the Land Titles Service, which you can contact through the regional offices of Land Information New Zealand.

Once the District Land Registrar is satisfied that the easement has been extinguished by surrender, the Registrar will note the extinguishing of the easement on the Register.

Merger

If the ownership of the servient tenement becomes vested in the person entitled to use the easement (the dominant owner) then an easement will be considered to have been extinguished.

If the two pieces of land are in the possession of the same person but have different owners (for example, a person owns and occupies one property and also has a lease on the other), the easement will be suspended until the possession of the two properties is again in two sets of hands.

Court order

Under the PROPERTY LAW ACT 1952 the court may order that an easement be modified or wholly or partly extinguished. It can do this on an application by the occupier of the land that is subject to the easement. An application can also be brought by a person against whom proceedings have been brought to enforce an easement (see How to enforce your rights under an easement).

Before the court can modify or extinguish an easement under this provision, it must be satisfied:

• that the easement should be modified or extinguished because of some change in the nature or extent of the use to which either of the properties is put, or some change in the character of the neighbourhood, or some other relevant change, or
• that the continued existence of the easement in its present form would restrict the reasonable use of the servient land in a different manner or extent from that which could have been reasonably foreseen by the original parties, or
• that the occupiers of the dominant tenement have agreed to the easement being modified or extinguished or have abandoned or waived the easement, or
• that the proposed modification or extinguishment of the easement will not substantially injure the people entitled to the benefit of the easement

The court has a discretion as to whether it makes an order under this provision. If one of the above grounds is made out, it may still decline to make the order requested.

Occurrence of an agreed event

An easement might be extinguished by the occurrence of some agreed event. For example, it might have been agreed that an easement would last until the land is sub-divided.

Variation of easements by agreement

The parties can agree between them to vary the easement by both of them executing and registering a Memorandum of Variation of Easement under the LAND TRANSFER ACT 1952. This is then noted on the Register in the same way as the original Memorandum of Transfer that created the easement. This is done through the Land Titles Service of Land Information New Zealand.

Cautionary notes

• If the easement in question concerns a subdivision, it may have been a condition of the council granting the subdivision consent that the easement continue. Therefore the easement will not be able to be extinguished without the council consenting to this.
• If the dominant land is mortgaged, the easement cannot be extinguished without the mortgagee’s consent.
• The law concerning easements can often be technical and confusing, and often involves many documents. To ensure that your interests are best protected and that all the necessary legal requirements are met, it is strongly recommended that you seek the services of a lawyer experienced in property matters.