Skip to main content



Berger v. Washington Forge Inc.

A-2382-97T3 (N.J. Super. App. Div. 1998) (Unpublished)

EASEMENTS; ABANDONMENT—Abandonment of an easement is a question of intent; mere non-use will not forfeit or extinguish it.

A landowner sold a lot, including an industrial facility, to a manufacturing company. Five years later, in connection with a settlement of unresolved disputes concerning the original sale, the seller and buyer executed an easement agreement which provided “a permanent, open and unobstructed easement and right-of-way in perpetuity upon and across the [P]remises ... to maintain and renew the Premises as a parking area for motor vehicles and for other uses necessary or incidental to the operation of the GRANTEE’s property adjacent to the Premises together with a perpetual right to enter upon the Premises to maintain and repair such parking lot or other use… .” No provision was made in the agreement for termination of the easement. Four years later, the manufacturer’s facility was closed, and until the time of trial, the property subject to the easement had not been used as a parking lot or for any other specific purpose. The grantor of the easement argued that the manufacturer’s termination of operations at the facility and its failure to indicate by the date of trial that it would resume use of the facility, constituted abandonment of the easement. In response, the manufacturer certified that it did not intend to abandon the property and was actively marketing the facility and easement. In addition, it alleged that the easement was an “essential component of the value of the Property for it ensures access for emergency vehicles and large vehicles that may make deliveries to or pickups from the Property and provides parking necessary to the full utilization of the Property.” In addition the manufacturer represented that it would reopen the facility if “business conditions justify it.” Thus, the issue before the Court was whether or not the factual dispute over the manufacturer’s intent to sell or reopen the facility is material to find abandonment of the easement. Unfortunately for the property owner, mere non-use of an easement will not forfeit or extinguish it. Abandonment is a question of intent, although non-use over a number of years may be one factor to consider, to constitute abandonment, “the facts or circumstances must clearly indicate such an intention.” For destruction of an easement by a non-user, there may also “be some conduct on the part of the owner of the servient tenement adverse to and defiant of the easement, and the non-use must be the result of it.” In addition, the owner of an easement is not required to comply strictly with its terms. It may use the easement in a different manner if its use does not increase the servitude or change it to the injury of the servient tenement. Thus, the Court found that the manufacturer did not abandon the easement and that the non-use of the easement certainly did not “increase the servitude.”


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com