Written by attorney Lee Willis Harwell Jr


Recently a problem arose over a set of old easements for a road and for bridal paths on undeveloped property. Those old easements prevented the developer/owner from obtaining building permits to build on the property. Those old easements had never actually been used. Due to the age of the easements, the corporate transfers, stock buy-outs and mergers that had occurred between corporations, partnerships and other entities over the years it was not clear what entity presently owned the easement. One entity claimed to be the successor in interest and present owner the easement. However, even that entity could not trace the chain of ownership, step by step, from the original easement owner. No deeds had been recorded at the county recorder’s office showing that the easement had ever been transferred.

It took about eight months but this problem was solved by getting a court judgment quieting title by establishing that the easements had been abandoned and, as a result, ownership of the easements reverted to the developer/owner.

Under Civil Code section 887.040(a) the owner of real property subject to an easement may bring an action to establish the abandonment of the easement and to clear record title of the easement. Evidence sufficient to establish abandonment is shown where, in the last 20 years, no use has been made of the easements, no taxes have been paid on the easements and no document has been recorded regarding the easements. The lack of use can be shown by photos and by the fact that the present property is only a small part of the property was originally subject to the easements. The lack of taxes can be shown by the lack of an APN for the easement and lack of record of payment taxes. The lack of recorded documents regarding the easement can be shown by a title policy or by title search.

If the three elements (lack of use for twenty years, no taxes and no recorded document) required under Civil Code section 887.040(a) cannot be shown there is an alternative method. Affirmative acts, such a cutting up the original property, making the use of the remnants of these easements useless, can demonstrate an intent to abandon the easements, as required under Civil Code section 811(3) [Extinguishment of servitude by acts incompatible with its nature]. Abandonment can be shown where the original parcel subject to the easement has been chopped up without regard of the easements and only small, useless, fragments of the easements remain on the present property.

For quiet title actions time must be spent to post the summons and complaint on the property and publish the summons and complaint in the local newspaper. Also, a good due diligence effort must be made to ferret out and locate the potential claimants to the easement.

If the present owner of the easement can be located, if there is proof of ownership and if a grant deed from that present owner can be obtained this method can be avoided. Even if there is a present owner that present owner’s claim to the easement would not be worth much if the easement is abandoned due to lack of use for twenty years, etc.

The cost of the quiet title action and the and delay caused by meeting the publication and due diligence requirements should be considered before determining whether a development makes economic sense. On the other hand that cost and delay often are relatively minor in comparison to the total cost and time line of the development.

Additional resources provided by the author

Cases under Civil Code section 887.040(a), city records, published histories of local towns, county recorder’s office.

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