Even when the grant of an easement is made without term, courts may presume that an appurtenant easement is intended to terminate when the purpose for which it is created can no longer be served. When the easement is intended to endure so long only as the purpose of its creation can be regarded as still existent, the possible duration of the easement corresponds to that of an estate in fee determinable rather than to that of an estate in fee simple. If courts can presume an easement appurtenant is intended to be determinable, there is no reason why a landowner cannot expressly make it so.
The original owner of the respective properties of the landowners and easement holders planned to construct an apartment building on easement holders' property. The original owner recorded an easement to impress a perpetual parking easement upon the whole of landowners' property. After the completion of the apartment building, the original owner conveyed landowners' property to one party and easement holders' property to another party. The new owner of landowners' property recorded a corrected declaration of easement as to landowners' property due to the misdefined scope and term of easement. Landowners and easement holders then succeeded to the title of their respective properties.
Is there a valid easement?
The court held that landowners' property was properly burdened by the easement because (1) the language "hereby create and establish" employed in the corrected easement signified an intent to grant the easement. (2) The description in the corrected easement of the grantees as "owner and occupants of the apartments" was sufficient to identify the intended recipients of the grant. And (3) the burden was affixed to landowners' property as a covenant running with the title, and landowners had constructive, if not actual, notice.