The Easement on the Title: Can We Be 100% Sure It Still Exists?

An easement grants the right to use someone else’s property for a specified reason. You probably know this. But do you know the difference between a recorded easement deed, and the actual way an easement is used?

Just because an easement deed is recorded, you might assume it still legally exists. And you’d likely be right. But not in every case.

Property Laws Are in the State Code—But Continually Shaped in the Courts

Property law in the United States has a long tradition. It dates back even before colonial times—back to the courts of England.

But not every state treats laws on such topics as easements exactly the same. If people disagree about the law, and need to know what their rights are, they might take their cases to the courts. So, each state has its own history of case law—that is, the law that’s made in its courtrooms.

Consider an easement question that recently came up in a New Jersey courtroom.

An easement is a legal right to use another person’s land for a specific purpose. If that other party is clearly no longer in need of the easement, does the homeowner still have to honor it?

Whether you live in New Jersey or elsewhere, you’ll want to know how the court answered.

Use It or Lose It: New Jersey Court Points Out That Easements Can End Without Official Releases

A recorded easement doesn’t always need a recorded release document to end. Questions on this point have just been addressed in New Jersey.

Per the recent court case, an easement can be “deemed abandoned under New Jersey law” if the party who’s allowed to use the easement avoids using it. But the facts were specific. The easement holder had refrained from using the easement for a long time. Plus, it had been physically separated off from access. Decades passed without question.

In this case, the New Jersey court let the facts speak. The court deemed the right-of-way abandoned, and the easement legally ended.

This is an excellent example of a court creating a fair remedy when a party isn’t exercising its rights.  

What You Find in the Title Search Is (Maybe Not) What You Get

Recorded instruments such as land deeds and easement deeds represent legal rights and obligations. Yet they might not, in every case, tell the whole legal story. If a dispute turns into a legal action, a court will look at more than what’s written within the four corners of a deed. A court looks at the patterns of use of the land, how it’s being physically managed, and the parties’ interactions.  

In January 2026, an appellate court in New Jersey considered a recorded easement that was created to allow the neighbor to park. But it hadn’t been used in decades.

This case, PC Clark Property LLC v. Halstead Realty LLC:

• Explores the difference between a recorded easement deed and the actual way an easement is used. Both have legal consequences.

• Relates not just to easements, but to any recorded documents, where past use tells a different story than what’s recorded on paper.

• Illustrates the importance of insuring a property’s title against unknown issues or defects.

An owner’s title policy protects the homeowner’s marketability of title. The company agrees to back up the policy holder in case legal property rights or duties come into question.

Letting the Facts Speak: How a New Jersey Easement Was Deemed Abandoned

Back in the 1970s, Anthony and Helen purchased an area of land in Westfield, New Jersey that included three parcels. They later transferred two of those parcels to their adult children. The adult children transferred the parcels into an LLC they created: Halstead Realty Company.

In 1987, they leased one of the parcels, plus a parking easement, to the nursing home next door. But they also maintained and used that easement patch themselves. Notably, they used it for longer than the New Jersey minimum for adverse possession.

During an expansion project, the nursing home asserted a claim to the easement. It demanded that fencing and other obstructions be removed.  

With the area now in dispute, the parties went to court.  

The judge heard from witnesses who said they couldn’t recall the easement space ever being used as such. Nor had the fencing been disturbed. No one was treating the area as an easement. When all the testimony was given, the court found that the easement had not been treated as such for more than 30 years, and had been effectively abandoned. Given that easements are not the property of those who are allowed to use them, this land belonged to Halstead Realty Company, and the court declined to allow the nursing home to assert its rights. Essentially, the court said: Use it or lose it.

On appeal, the nursing home argued that an easement needs to be ended formally, or it’s there for the duration. It “runs with the land.” A perfectly good argument, right? We might think so. But the appeals court, like the lower court, found the easement abandoned. Through the court, the termination of an easement was recognized.   

The Norm: To End an Easement, Use a Release Deed

You can record a termination form when the parties decide to retire a right of access. You can also record a termination form when an easement has been abandoned or replaced by a different right-of-way area.

Look up your state on our forms page. A homeowner in New Jersey, for example, would pull up the New Jersey Termination of Easement form.

Be sure to pull up the form specific to the county where the land exists, and fill it in fully. Notarize and record the release as instructed. This discontinues a previously recorded document that involves access to and from a property.

Property owners might grant access to allow, for a few examples:

• Driveways, passageways, or private access roads.

• Hiking trails.

• Electric lines.

• Gas, water, or sewer lines.

• Stormwater drainage.

• Access to unobstructed sunshine or scenic views.

• Access for the upkeep of a shared wall or fencing.

When the easement is successfully terminated and the release is recorded, the public record should reflect that the easement has been ended.

Our termination of easement forms come with guidelines and a completed example for your reference. Our forms are designed and regularly updated to meet all state and local recording requirements.

Important note: The owner should inform the mortgage lender or servicer before recording a deed or termination form.

Check the Title. But Don’t Assume It Tells You Everything

Deed transfers, including easement deed transfers, should be formally recorded with the county. This act puts the public on notice of rights, responsibilities, and restrictions on the use of the land at issue.

But as critical as recording a legal instrument is, that recording might not be the final word on the parties’ rights and duties.

A challenger to the title of a piece of property will first look to the written documents. But they also have to understand that the long-term history of land use matters. In unusual cases, actual use of the property can control the outcome of a challenge.

As you can see, a title search can miss things that a court would find. Therefore, insure your title rights when buying or refinancing a home. The title company can tell you if a given owner’s title policy covers risks like the one discussed here.

Important note: This article is not meant as a substitute for legal advice. For case-specific questions, consult a real estate lawyer in your state.