Hard To Give Them Up – A High Standard For Abandonment Of Easement Rights

November 4, 2020

By Mark W. Vyvyan

When property owners sell part of a larger parcel, it is common for the parties to create an easement across one parcel for the benefit of the other. These easements are often for “driveway” purposes and create rights of ingress and egress. Many times, however, the benefitted parties do not immediately exercise their easement rights and the rights go unused for many years. Even if easement rights are not used for an extended period, it would be a mistake for an owner of property burdened by such an easement to assume the other party’s easement rights have been abandoned.

A recent Wisconsin Court of Appeals’ case re-affirms that courts will impose a high standard when considering whether an easement has been abandoned. In Bohm v. Leiber, 2020 WI App 52, 948 N.W.2d 370, the Bohms purchased a subdivided parcel and obtained a right to cross the Leibers’ adjacent parcel. The deed to the Bohms created an easement for “a roadway for the purpose of ingress and egress.” For many years, however, the Bohms did not use the easement for ingress and egress. Instead, the Bohms took many actions in the easement area inconsistent with using the driveway for easement purposes, including planting sixty-one trees, constructing an approximately one-foot berm and placing other improvements. In addition, after the Leibers purchased their property, Mr. Bohm told the Leibers that he “had no intention of building a roadway on the easement property.” Despite all of this, the circuit court held as a matter of law that the easement rights had not been abandoned. On appeal, however, the court of appeals made clear that there was at least a fact issue about whether the easement rights had been abandoned.

The decision in Bohm is consistent with the Minnesota Court of Appeals’ decision in Richards Asphalt Co. v. Bunge Corp., 399 N.W.2d 188, 192 (Minn. Ct. App. 1987). In Richards Asphalt, the court found that, despite the placement of ten feet of fill on the easement area, easement rights had not been abandoned due to a lack of showing that the parties benefited by the easement ever intended the placement of fill to be permanent.

The decisions in Bohm and Richards Asphalt make clear that there is a high bar for courts to find that a party benefitted by an access easement has given up its rights through non-use of the easement, even when there are actions on the easement area that seem wholly inconsistent with the party ever using the easement area for the intended purposes. Accordingly, buyers of a property burdened by an easement should carefully consider whether those easement rights remain valid.