I have written and spoken on ways to terminate easements when a property owner finds itself subject to an older easement that is impacting the development of a property. The first step is to review the terms of the written easement agreement (assuming there is a written agreement) to evaluate any clause that may provide either party with the right to terminate the easement. If there is no termination right in the agreement, the owner of the property subject to the easement needs to be creative and look for other ways to attack the easement. One such challenge is to allege the easement has been abandoned.
The New Jersey Appellate Division recently issued an unpublished decision which reviewed the existing law in New Jersey on abandonment of easements and found the business that was the holder of the easement had abandoned its rights under the easement “by a deliberate course of development, segregation, and acquiescence to open use by others.” PC Clark Property, LLC, et. al. v. Halstead Realty, LLC, et. al., No. A-3907-23 (App. Div. Jan. 13, 2026). The decision provides a good road map for what an owner of the servient estate (the property where the easement is located) needs to prove to show the holder of the easement on the dominant estate (property that benefits from the easement) abandoned its right to use the easement.
In the mid-1970s, a husband and wife (the “Landowners”) owned 3 properties that were contiguous to one another. In 1987, one lot (1213 Westfield Avenue) was leased to a third-party tenant (the “Tenant”). At the same time, the Landowners granted the Tenant an easement on one of the adjoining lots he owned (1219 Westfield Avenue) to allow the tenant to park 14 cars and have additional access to the leased property. The easement was reduced to writing and described the area subject to the easement. Approximately 35 years later, a dispute arose over the size of the easement and who is entitled to use an additional five parking spaces in the disputed area of the easement. A lawsuit was filed and the parties asked the judge to define the legal rights of each party under the easement agreement.
The Tenant argued the legal description attached to the easement clearly includes the 5 additional parking spots in the disputed area. The Landowner disagreed and argued the easement was limited to 14 parking spots, which have been provided, and did not include the disputed area. However, the Landowner also argued that to the extent the disputed area with the 5 parking spots was included in the original easement, the Tenant “abandoned” its rights in disputed area as evidenced by its conduct.
The Court first addressed the legal standard for a servient estate to show the dominant estate abandoned its rights in the easement:
Under New Jersey law, abandonment of an easement requires clear and convincing evidence that the easement holder intended to permanently relinquish their rights or engaged in conduct inconsistent with the easement’s continued existence. City Nat’l Bank v. Van Meter, 59 N.J. Eq. 32, 36 (1899); Freedman v. Lieberman, 2 N.J. Super. 537, 543 (Ch. Div. 1949). Abandonment is not presumed and must be established by “clear and unequivocal evidence of decisive and conclusive acts.” Nuzzi v. Corcione, 139 N.J. Eq. 339, 346 (1947). Mere nonuse, even over an extended period, does not suffice. Gera v. Szenzenstein, 130 N.J. Eq. 164, 165 (1941). More is required—namely, some overt act or course of conduct manifesting a decision to forego the right. Corcione, 139 N.J. Eq. at 346. (emphasis added).
The Court reviewed the evidence and found that although the original easement did describe the disputed area, the Tenant “physically developed only the fourteen designated spaces, segregated the remaining area with curbing, fencing, and landscaping, and permitted the servient estate and its tenants to use and maintain the disputed area for their own business operations for more than thirty years.” The Court also found that the Tenant did not object to the Landowners’ use of the disputed area “despite numerous opportunities in connection with site surveys, transactions, and lease renewals.” Based upon this record, the Court held that the Tenant abandoned its interest in the disputed area and had no right to use the 5 disputed parking spots.
It is important to note that proof of abandonment requires “clear and convincing evidence” which is a higher standard than required in most cases. More important, mere non-use will not win the battle. To prove abandonment, the Court will want to see evidence of overt acts or course of conduct showing an actual intent to abandon the easement area.
