Property II

Termination


Servitudes can terminate through:

  • Written releases
  • Merger of the benefitted and burdened parcels
  • Prescription

    Prescriptive easements have the same requirements as adverse possession, minus the requirement of exclusivity and instead of "possession," it is just "use."

    Adverse Possession

    The adverse possession doctrine shifts title of land from the true owner to an adverse possessor after the statutory period expires.

    For possession to ripen into title under adverse possession, most authorities hold that it must be:

    1. Actual possession
    2. Exclusive possession
    3. Continuous possession
    4. Hostile possession
    5. Open and notorious possession

    all for the full duration of the applicable statute of limitations.

  • Abandonment

    Mere nonuse of an easement is not enough to constitute abandonment.

    Abandonment of a restrictive servitude occurs when "violations are so great as to lead the mind of the average [person] to reasonably conclude that the restriction in question has been abandoned."

    • In applying this test, courts consider the "'number, nature, and severity of the then existing violation[s], any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant.'"
    • Fink.
  • Public policy
    • Wholly arbitrary, violates policy, or far outweighs any benefit. Nahrstedt.
  • Changed Circumstances

    Changed circumstances terminates a restrictive servitude when it no longer benefits anyone, yet still imposes a burden.

    Alameda.

To determine if a servitude is valid:

  1. Check for ambiguity
  2. Check for reasonableness
  3. Check for abandonment
  4. Check for estoppel