Termination of Easements
Release by Deed or Agreement
Easements can be released in the same way as they can be granted. Generally, the release must be by a deed i.e. a document executed as such because an easement is a property right.
The same principle applies to the releases of easements as generally apply to a property interest. An agreement to release an easement may be enforceable in equity under the same principles that apply to agreements for the grant or release of other property interests.
It is possible for the release of an easement to take place by way of equitable principles of estoppel and acquiescence. If a person acts in such a way that he leads another to believe that he will not assert his strict rights, then he may be estopped from claiming his rights where another has acted to his detriment in reliance on the assertion or representation.
Reform Undone
The Land and Conveyancing Law Reform Act 2021 repealed the 2009 legislation which had provided new rules for the acquisition and extinguishment of easements. The legislation was born of a concern that the failure to establish an easement in the Land Registry or by court order within 12 years of the 2009 Act, could lead to its loss.
The 2009 legislation had provided that upon expiry of 12 years continuous period of non-use of an easement or profit acquired by prescription, implied grant or reservation, the easement or profit would be extinguished. This led to a distinction between the rules applicable to an easement granted by deed and one required by implication reservation or long use.
Most of the 2009 legislation in relation to easements was repealed and the earlier common law rules in relation to the acquisition and termination of easements by long use or disuse were reinstated.
Abandonment
Easements can be lost by abandonment or non-use. The 2009 legislation provided that they could be discharged by non-use for 12 years.
This no longer applies. The common law rules apply once again.
At common law, easements could be lost by abandonment. Abandonment requires something more than mere non-use or the use of an alternative facility. There must be some act or omission by or on behalf of the owner of the dominant element (land benefiting) showing an intention to permanently abandon the right.
Requirements for Abandonment
Abandonment will not be inferred from reduced or intermittent use. Generally, the owner of an easement may exercise it as occasionally as he chooses.
The courts must be able to infer an intention to abandon the easement and not to resume it. Continued long disuse may raise such a presumption. However, the owner of the dominant element may rebut this presumption, with evidence that there is no intention to abandon it.The evidence required for abandonment is greater than that required for a break in use in respect of a continuous period of acquisition.
An intention to abandon an easement will not be readily inferred without very clear evidence. Even the fact that a right-of-way has become overgrown or locked does not necessarily establish an intention to abandon it. The same may have been undertaken unilaterally by the owner of the servient tenement and may not disclose an intention on the part of the owner of the land benefitted to abandon it.
Partial Abandonment
In principle, it is possible to abandon an easement, in part. However, cases show a marked reluctance to recognise a partial abandonment or limitation. This follows from the principles of abandonment mentioned above.
Release or partial release may be inferred where there is a substantial change in the nature of the property or its use. In the case of an easement by prescription, the use which founded the original right will determine its nature and extent. Later use may be outside the scope of the easement as established and lead to its implied release or limitation.
Over-use
A substantial increase or alteration in the burden on the land affected may be such that the excessive use constitutes a nuisance. There must be a change in the nature and extent of the burden placed on the land affected by reason of a radical change in the land benefited. A radical change in the use or layout of the benefited land requires that there is a change in identity rather than a mere intensification of the earlier use.
Several cases show that a mere increase in use, even if significant in intensity, is not usually by itself sufficient for this purpose. Even significant development by way of multiple buildings may not of itself suffice for this purpose.
Union in Single Owner
Easements are presumed to terminate when the dominant tenement (land benefit) and servient tenement (land affected ) are united in the one owner. The fee simple estate in possession should be held by the same person.
The principle does not apply where the land is subject to leases. Therefore in the common case of multiple-unit development, easements may apply between the leaseholders.
An easement may be granted for a term of years in the same way as land is leased. The rights under the lease attaching to the property concerned will terminate on surrender, expiry or forfeiture of the lease.
Commonage
A great variety of profits exist over mountainous areas, many of which are enjoyed in common. The Land Commission granted ownership of many such areas to adjoining farmers as tenants in common in multiple shares often divided into several hundreds of parts. In such circumstances, the relevant profit right is terminated by reason of the substitution of the tenancy in common ownership right.
Profits such as grazing rights, sporting rights and, turbary rights may cease because the resource has been extinguished. In the case of grazing or sporting rights, they may be replenished. In this case, the right is likely to be suspended.
At common law, the owner of land subject to a common was entitled to remove the fruits of the land (e.g. grazing, sporting rights, turbary etc.) surplus to the requirements of those with profit rights. It is likely that the principle would apply to commonage in Ireland. In practice, there is no known or traceable servient owner of much commonage in mountainous are areas.
Severance
It appears that an attempt to sever an appurtenant (easement) right from the land benefited may result in it being extinguished. Because an easement (as opposed to a profit), it must be enjoyed as appurtenant to the dominant tenement (land benefited); it can only subsist for so long as it benefits this land as such. Accordingly, an attempt to alienate or transfer it may result in it being extinguished.
Some types of rights are capable of being enjoyed as easements or profits. Accordingly, severance of some classes of rights will not necessarily terminate them. This depends on the extent to which the user is linked to the needs of a particular property by its terms.
Appurtenant rights may usually be leased or licensed without extinguishment by way of severance. It appears the licence must be limited. It cannot exceed the scope of the right held.
Termination by Statute
There are several scenarios under which easements may be terminated by statute. Title to easements may be acquired by compulsory acquisition. Rights of compensation may arise.
Easements may terminate because they breach or come to breach legislation. For example, by law special rights apply in respect of motorways. Therefore when a property becomes a motorway, former easements exercisable in respect of it while it was an ordinary roadway may terminate.
Sporting Rights
A special provision applies to sporting rights under the Land Act 1965. There is a statutory power to apply to extinguish profits by way of sporting rights (other than fishing rights). The procedure allows for an application to the Land Registry.
The application is based on such rights not being exercised in the period of 12 years beforehand. They are declared by to terminate, and an application may be made to the Land Registry based on satisfactory evidence of such non-use.
References and Sources
Primary Texts
Easements Bland 2nd Edition 2015
Wylie on Irish Land Law Wylie 6th Edition 2020
Land Law In Ireland -Lyall 4th Edition 2018
Principles Of Irish Property Law de Londras 2nd Edition 2011
Equity and the Law of Trusts in Ireland- Keane 3rd Edition
Land Law Kenna & Murphy 2019
Land Law Pearce & Mee 3rd Edition 2011
Other Irish Sources
The Land and Conveyancing Law Reform Act 2009: Annotations and Commentary -Wylie 2nd Edition 2017
Property Legislation 2009 2011 Cannon, Clancy, Kenna 2012
Irish Land Law – A Casebook: Adanan Maddox 2020
A Casebook on Equity and Trusts in Ireland – Wylie
Shorter Guides
Land Law Nutshell Cannon 2020
UK Textbooks
Land law C. Bevan 2nd ed.2020
Land Law: Text, Cases and Materials B McFarlane, N Hopkins and S Nield, (4th ed. OUP 2018)
Property Law R Smith(10th ed., Pearson, 2020)
Cheshire and Burn’s Modern Law of Real Property by Burn, E. H. 2011
Modern Land Law Dixon 2018
Elements of Land Law Gray, 2009
Property law: cases and materials Smith 2015
Land law Cooke 2015
The Limitation of Actions, 2nd ed Brady and Kerr 1994