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Revival of an Easement by Merger

In a recent post, we discussed how easements can be terminated by merger. In this post, we will discuss how an easement extinguished by merger can be revived.

Although an easement is extinguished by a merger of the dominant and servient estates, there are certain situations where the extinguished easement will be revived. The first situation is where there is an implied grant or reservation. Specifically, an extinguished easement may be created by an implied grant or reservation if: (a) the common owner continues to use it to benefit the quasi-dominant tenement; and (b) the common owner then conveys one of the parcels to a third party. (Silveira v. Smith (1926) 198 Cal. 510, 517.)

The second situation occurs where an extinguished easement is recreated via prescription. In this situation, the prior owner of the easement continues to use the easement after it has been terminated. If the prior owner continues the use the easement in a way that satisfied the requirements to create prescriptive easement, the prior owner can acquire prescriptive rights over the terminated easement.

Schorr Law has experience with all types of easement issues. To inquire about a free consultation please call (310) 954-1877 or email us at info@schorr-law.com.

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