How to Void an Easement in Oregon
Under Oregon law, an easement is a non-possessory interest in land that grants the easement holder the exclusive right to enter upon the property for a specific reason. Oregon case law recognizes four ways to abandon or void an easement: abandonment, consent, prescription or merger. Additionally, easements created based upon necessity can be voided when the necessity is no longer present.
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Instructions
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Ensure an easement actually exists. Oregon law requires that specific legal steps must be followed to create a valid easement. An easement can be expressly created by drafting a creation document and filing it with the recorder of deeds. It can also be created in an express conveyance of real estate by retaining an easement in the grantor. Easements are also created by implication and necessity as well. If an easement is not properly created, it cannot be terminated by any operation of law.
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Manifest an intent to no longer utilize the easement. Oregon law requires the easement-holder to manifest an intent to relinquish his property rights in the easement. Abandonment occurs when the court is satisfied that the holder evinces an intent to abandon the easement. It is important to note that non-use alone will not trigger abandonment if the non-use is not accompanied by clear, factually-based evidence of abandonment. Non-use for a substantial period of time will be treated as one factor in determining abandonment and is not conclusive in and of itself.
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Enter into a written agreement to terminate. As Oregon law requires evidence of abandonment to terminate an easement, a written agreement terminating the easement can help the court conclude that the party is manifesting intent to terminate. While affirmative abandonment conduct is the foremost requirement, the writing will serve to aid the parties in convincing the judge that the easement should be voided. If the original conveyance contained a durational limitation for the easement, the passage of time will also help the court conclude that the easement should be voided.
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Obtain title to the property requiring the use of the easement. Another method by which to void an easement is for the owner of the property granting the easement to also gain title to the property utilizing the easement. This is known as a "merger" and will immediately terminate the easement upon transfer.
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Terminate the necessity giving rise to the need for an easement. One type of easement, known as the easement by necessity, is created when a significant need arises. This could involve a situation where one property owner has no access to a public roadway or power lines. In this situation, an easement will be created. Oregon public policy encourages the productive use of land and will recognize an easement by necessity even where no deed or document has been drafted. An easement by necessity will terminate when there is no longer a public or private necessity for the easement.
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References
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