Easement by estoppel refers to an easement that is created when the conduct of the owner of land leads another to reasonably believe that he or she has an interest in the land so that he or she acts or does not act in reliance on that belief.
The person who attempts to create an easement by estoppel must show that a representation was communicated to the promisee, the representation was believed, and there was reliance upon such a communication. For example, an easement may be created by estoppel where a seller represents to a buyer that an easement exists, in favor of the premises proposed to be sold, over the seller's other realty, and the purchaser relies on that representation, but the conveyance subsequently made does not mention such an easement.
The reliance that is required for creating an easement by estoppel requires a showing of some detriment to the person relying on the easement. The detriment may be determined from the surrounding circumstances, including the effect on the easement user if the easement is revoked or removed.
The following is an example of a New Jersey case law describing the elements of easement by estoppel:
As to the party estopped the following elements should be shown:
(1) conduct that amounts to a false representation, or concealment of material facts, or conduct that conveys the impression that the facts are inconsistent with those that the party subsequently asserts;
(2) intention, expectation or reasonable foreseeability that the other party will act as a result of that conduct; and
(3) knowledge of the true facts.
As to the party asserting the estoppel it should be shown that there is:
(1) lack of knowledge and of the means of knowledge of the truth as to the facts in question;
(2) reliance upon the conduct of the party estopped; and
(3) action based thereon of such character that his position has changed prejudicially. [Mahony v. Danis, 95 N.J. 50, 60 (N.J. 1983)]