Can I Revoke an Easement on My Property for Utilities?

Full question:

I am uncertain if an easement was issued in 1992 when I bought my home. I have been under the assumption it was. The property my home is on is encroached on by an apartment building by 1.7 feet and the water, sewage, and other utilities of these apartments run through my back yard. I was told at the time as a first time home buyer I had no choice I had to sign an easement for the public utilities, not for the utility company but for the owner of the apartments use. It has caused a mess for 20 years. The owner of the apartments at the time I bought the home lost the property in 1994. The current owner does no maintenance to the encroachment area. I have been told by our City Water Director that I did not have to give him an easement and that I could have forced him to move the water lines to his property. Can an easement that might have been issued be revoked by me now. I want his mess out of my yard. I am searching title and deed certificates but would like to know if I have a legal hopes of correcting a novice mistake made 20 years ago. If I signed an easement allowing his water lines, sewage, utilities, and water meter to be on my property, can I go to court and revoke it and force him to relocate?

• Category: Real Property
• Subcategory: Easements
• Date: 04/07/2025
• State: New Mexico

Answer:

A right of way, in the context of real property law, is the right to travel over someone's land and to have the reasonable use and enjoyment of their property as long as it is not inconsistent with the owner's use and enjoyment of the land. The right of way may be a specific grant of land or an "easement," which is a right to pass across another's land. If the right of way was created by a legal instrument such as an easement, then it would be recorded on the land records to preserve the users's rights in the land.

Once an easement is created, the owner of the easement has the right and the duty to maintain the easement for its purpose unless otherwise agreed between the owner of the easement and the owner of the underlying property. The owner of the easement can make repairs and improvements to the easement, provided that those repairs or improvements do not interfere in the use and enjoyment of the easement by the owner of the property through which the easement exists. Easements may be renegotiated under contract law principles, and may be terminated by abandonment when the easement holder intends to abandon an easement and takes actions which manifest that intent. Two types of easements include easements in gross and appurtenant easements. Easements in gross or personal easements are personal rights given to individuals or specific groups. Once the easement owner dies, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.

The characterization of an easement will affect the rights to transfer the easement to another. Easements appurtenant are adjacent to the servient estate (the underlying land). If the dominant estate (the property which enjoys the benefit of an easement over the servient estate) is sold or otherwise transferred to another, the easement over the servient land is transferred with it.

When the title is transferred, the easement appurtenant typically remains with the property. This type of easement runs with the land; which means that if the property is bought or sold, it is bought or sold with the easement in place. The easement essentially becomes part of the legal description.

To terminate an easement, a condition for the purpose of the easement must have changed, such as:

• Easement's purpose no longer exists

• Ownership of the easement and of the land where the easement is located merges into one owner

• Land owner releases the easement

• Easement is abandoned

• Nonuse (of a prescriptive easement)

• Adverse possession by the owner of the land where the easement is located

• Court judgment in a quiet title action

• Misuse of the easement

Misuse of an easement does not usually terminate the easement but may give rise to claims for legal or equitable remedies. Legal proceedings may be necessary to interpret and determine the scope of easements.