overcoming land and development restrictions: easements, adverse possession and other property...

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1 Adam Leitman Bailey, P.C. 2016

Overcoming Land and Development Restrictions: Easements, Adverse Possession and Other Property ObstaclesApril 7, 2016Judicial Title Insurance Agency LLCSpring CLE


UNDERSTANDING EASEMENTs

CREATIONEasements can be created in four ways: Grant,Implication from prior use, Implication from necessity, andPrescription. 3 Adam Leitman Bailey, P.C. 2015

Easements

4 Adam Leitman Bailey, P.C. 2015An easement is an interest in land in the possession of another which (a) entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists; (b) entitles protection against third persons from interference in such use or enjoyment; (c) is not subject to the will of the possessor of the land and (e) is capable of creation by conveyance.

Adam Leitman Bailey, P.C.New York Real Estate Attorneys

Restatement of Prop. 450 (1944).

5 Adam Leitman Bailey, P.C. 2015Easement by Grant


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Adam Leitman Bailey, P.C. 2015

L 80 P394 Sec 5 h. H. Cook, Mary ux. Oliver H. Payne

BAP Ely 5th Av. 32 2 S-79th StreetS 70E 115N 102 2W 15S 32W 100 to PBTogether with an unobstructed easement of light air and prospect, as the same now exists, for twenty years from date over the lot of (1) on Fifth Avenue immediately south of the above described premises said lot being twenty feet in breadth on said avenue and in the rear by one hundred feet in depth on each side. 8 Adam Leitman Bailey, P.C. 2015


When the dominant estate is transferred, the easement passes to the subsequent owner through appurtenance clauses even though there is no specific mention of the easement in the deed. Adam Leitman Bailey, P.C.New York Real Estate Attorneys

68 N.Y.2d 963, 965, 503 N.E.2d 99, 100, 510 N.Y.S.2d 543, 544 (1986).

Easement AppurtenantTOGETHER, with all right title and interest, if any, of the party of the first part in and to any streets and roads abutting the above-described premises to the center lines thereof; TOGETHER, with the appurtenances and all the state and rights of the party of the first part in and to said premises; TO HAVE AND TO HOLD the premises herein granted unto the party of the second part, the heirs or successors and assigns of the party of the second part forever10 Adam Leitman Bailey, P.C. 2015

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EASEMENTS BY IMPLICATION FROM PRIOR USEThere are four requirements needed to create an easement by prior use. First, there must be a common grantor at the time the parcels were split. Second, there must have been an existing use of one parcel to benefit another. Third, the use of the burdened parcel must be continuous, obvious, and seem permanent. Fourth, be reasonably necessary to the dominant lands use and enjoyment.


The necessity required for an implied easement based upon preexisting use is only reasonable necessity, in contrast to absolute necessity required to establish an implied easement by necessity. Four S Realty Co., v. Dynko, 210 A.D. 2d 622, 623, 619 N.Y.S.2d 855, 856 (1994). 13 Adam Leitman Bailey, P.C. 2015EASEMENTS BY IMPLICATION FROM PRIOR USE


Easement of Necessity Adam Leitman Bailey, P.C.New York Real Estate Attorneys

Although an easement can arise in a variety of ways, any easement can be extinguished by the easements abandonment by the owner of the dominant estate. In order to prove abandonment, it is necessary to establish not only an intention by the dominant estate holder to abandon the rights to the easement, but also some overt act or failure to act, which carries the implication that the owner neither claims nor retains any interest in the easement. However, the act must unequivocally reference the intent to abandon the easement and clearly demonstrate that the dominant estate owner is permanently relinquishing all right to the easement and not merely deserting it for some temporary period. Mere nonuse is not enough to constitute abandonment, even if for a long period. Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).

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Imagine a land owner has a fairly substantial piece of acreage and decides to subdivide it into lots and one of the lots the owner creates is completely landlocked inside the other lots. Paine v. Chandler, 134 N.Y. 385 (1892). Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d 900, 903 (1997).



Easements created by necessity terminate when the necessity comes to an end. The most common example of easement by necessity will illustrate the difference. Imagine a land owner has a fairly substantial piece of acreage and decides to subdivide it into lots and one of the lots the owner creates is completely landlocked inside the other lots. As the owner sells off those lots, the sale creates an easement of access on those lots enabling the owner of the landlocked lot to access the highway. This is an easement of necessity. Even when no agreement exists as to the right of access, the owner requiring access has a right to it. But when a new means of access comes available and the original necessity perishes, the land owner loses its right of access. The law requires that such an implied easement be actually necessary for the use and enjoyment of the property, not merely convenient to the owner of the dominant estate. Paine v. Chandler, 134 N. Y. 385 (1892). Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d 900, 903 (1997). Id. Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).

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As the owner sells off those lots, the sale creates an easement of access on those lots enabling the owner of the landlocked lot to access the highway. Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d 900, 903 (1997). Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960). Adam Leitman Bailey, P.C. 2015


Easements created by necessity terminate when the necessity comes to an end. The most common example of easement by necessity will illustrate the difference. Imagine a land owner has a fairly substantial piece of acreage and decides to subdivide it into lots and one of the lots the owner creates is completely landlocked inside the other lots. As the owner sells off those lots, the sale creates an easement of access on those lots enabling the owner of the landlocked lot to access the highway. This is an easement of necessity. Even when no agreement exists as to the right of access, the owner requiring access has a right to it. But when a new means of access comes available and the original necessity perishes, the land owner loses its right of access. The law requires that such an implied easement be actually necessary for the use and enjoyment of the property, not merely convenient to the owner of the dominant estate. Paine v. Chandler, 134 N. Y. 385 (1892). Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d 900, 903 (1997). Id. Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).

EASEMENTS BY PRESCRIPTIONAn easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period. 315 Main Street Poughkeepsie, LLC v. WA 319 Main, LLC, 62 A.D.2d 690, 691, 878 N.Y.S.2d 193 (2009); Hammond v. Zehner, 21 N.Y. 118 (1860) The prescriptive period is 10 years. 315 Main Street Poughkeepsie, LLC v. WA 319 Main, LLC, 62 A.D.2d 690, 691, 878 N.Y.S.2d 193, 194 (2009) (citing N.Y.R.P.A.P.L. 501). 17 Adam Leitman Bailey, P.C. 2015

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There are 8 ways to terminate an easement:Abandonment Merger End of Necessity Demolition Recording ActCondemnation Adverse PossessionRelease Adam Leitman Bailey, P.C. 2015Adam Leitman Bailey, P.C.New York Real Estate Attorneys


Abandonment Adam Leitman Bailey, P.C.New York Real Estate Attorneys

20In order to prove abandonment, it is necessary to establish not only an intention by the dominant estate holder to abandon the rights to the easement, but also some overt act or failure to act, which carries the implication that the owner neither claims nor retains any interest in the easement.




Banach v. Homes Gas Co., 12 A.D.2d 373, 211 N.Y.S.2d 443 (1961)Issue: Whether the defendants easement to lay and maintain a pipeline over plaintiffs lands terminated due to abandonment.Rule: Nonuse alone, even for a long period of time, is not enough to constitute abandonment. Id. at 375, 211 N.Y.S.2d at 445. 21 Adam Leitman Bailey, P.C. 2015Adam Leitman Bailey, P.C.New York Real Estate Attorneys

Application: Defendant laid a natural gas pipeline four feet under the ground across plaintiffs lands. Id. at 374, 211 N.Y.S.2d at 444. Defendant justified his act on the basis that he had a right pursuant to an easement to lay and maintain such a pipe. Id. Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned. Id. Plaintiffs nonuse of land from 1932 to 1957, which was when the defendant constructed the pipeline over plaintiffs land, does not constitute abandonment. Further, there was no intention to abandon the easement or any affirmative conduct inconsistent with the desire to use the easement. Thus, the easement was not terminated.

Banach v. Homes Gas Co., 12 A.D.2d 373, 211 N.Y.S.2d 443 (1961)Application: Defendant laid a natural gas pipeline four feet under the ground across plaintiffs lands. Id. at 374, 211 N.Y.S.2d at 444. Id. Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned. Id. Plaintiffs nonuse of land from 1932 to 1957, which was when the defendant constructed the pipeline over plaintiffs land, does not constitute abandonment. Further, there was no intention to abandon the easement or any affirmative conduct inconsistent with the desire to use the easement. Thus, the easement was not terminated. 22 Adam Leitman Bailey, P.C. 2015Adam Leitman Bailey, P.C.New York Real Estate Attorneys

Application: Defendant laid a natural gas pipeline four feet under the ground across plaintiffs lands. Id. at 374, 211 N.Y.S.2d at 444. Id. Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned. Id. Plaintiffs nonuse of land from 1932 to 1957, which was when the defendant constructed the pipeline over plaintiffs land, does not constitute abandonment. Further, there was no intention to abandon the easement or any affirmative conduct inconsistent with the desire to use the easement. Thus, the easement was not terminated.

Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960)Issue: Whether there is a potential claim by defendant for the termination of an easement by abandonment. The acts must clearly demonstrate the permanent relinquishment of all right to the easement. Id. The mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment.23 Adam Leitman Bailey, P.C. 2015Adam Leitman Bailey, P.C.New York Real Estate Attorneys

Easement by grant, express or implied, can only be extinguished by abandonment, conveyance, condemnation, or adverse possession. Id. at 330, 680 N.E.2d at 180, 187 N.Y.S.2d at 163. In order to prove abandonment it is necessary to establish both an intention to abandon and also some overt act or failure to act, which carries the implication that the owner neither claims nor retains any interest in the easement. Id. at 331, 680 N.E.2d at 181, 187 N.Y.S.2d at 164. Acts evincing an intention to abandon must be unequivocal. Id. The acts must clearly demonstrate the permanent relinquishment of all right to the easement. Id. The mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment. Id. at 331, 680 N.E.2d at 181, 187 N.Y.S.2d at 164 (citing Roby v. New York Cent. & H.R.R. Co., 142 N.Y. 176, 181, 36 N.E. 1053, 1055). Application: Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lane. When originally divided, the lane was the only possible avenue to a public street from the defendants property.. Defendant constructed a patio and built fences and enclosures on this land. Plaintiff commenced action against defendant to remove these encumbrances. The lower court entered judgment in favor of the plaintiff. Defendant appealed. Court of Appeals held that encroachments may either be found to show a present intention not to use the easements so as to unequivocally demonstrate an abandonment or a deferred use, which would be consistent with a reliance upon the continued existence of a property right of way. Conclusion: Yes. Defendant might be able to prove that the easement was abandoned.

Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960)Application: Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lane. When originally divided, the lane was the only possible avenue to a public street from the defendants property.. Defendant constructed a patio and built fences and enclosures on this land. Plaintiff commenced action against defendant to remove these encumbrances. The lower court entered judgment in favor of the plaintiff. Defendant appealed. Court of Appeals held that encroachments may either be found to show a present intention not to use the easements so as to unequivocally demonstrate an abandonment or a deferred use, which would be consistent with a reliance upon the continued existence of a property right of way. Conclusion: Yes. Defendant might be able to prove that the easement was abandoned. 24 Adam Leitman Bailey, P.C. 2015Adam Leitman Bailey, P.C.New York Real Estate Attorneys

Easement by grant, express or implied, can only be extinguished by abandonment, conveyance, condemnation, or adverse possession. Id. at 330, 680 N.E.2d at 180, 187 N.Y.S.2d at 163. In order to prove abandonment it is necessary to establish both an intention to abandon and also some overt act or failure to act, which carries the implication that the owner neither claims nor retains any interest in the easement. Id. at 331, 680 N.E.2d at 181, 187 N.Y.S.2d at 164. Acts evincing an intention to abandon must be unequivocal. Id. The acts must clearly demonstrate the permanent relinquishment of all right to the easement. Id. The mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment. Id. at 331, 680 N.E.2d at 181, 187 N.Y.S.2d at 164 (citing Roby v. New York Cent. & H.R.R. Co., 142 N.Y. 176, 181, 36 N.E. 1053, 1055). Application: Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lane. When originally divided, the lane was the only possible avenue to a public street from the defendants property.. Defendant constructed a patio and built fences and enclosures on this land. Plaintiff commenced action against defendant to remove these encumbrances. The lower court entered judgment in favor of the plaintiff. Defendant appealed. Court of Appeals held that encroachments may either be found to show a present intention not to use the easements so as to unequivocally demonstrate an abandonment or a deferred use, which would be consistent with a reliance upon the continued existence of a property right of way. Conclusion: Yes. Defendant might be able to prove that the easement was abandoned.


MergerAdam Leitman Bailey, P.C.New York Real Estate Attorneys


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Under the merger doctrine, an easement will terminate when the dominant and servient estates become vested in one person. Adam Leitman Bailey, P.C. 2015


An easement once granted may be ended by merger. Under the merger doctrine, an easement will terminate when the dominant and servient estates become vested in one person. To satisfy this, there must be a comple te unity of the dominant and servient estates, meaning that one person or entity owns the entire plot of land. When only a portion of the servient or dominant estate is acquired, there is no complete unity of title. Therefore, the easement still stands. In other words, in order for such an abolition of the easement to take place, the entire burdened property and the entire dominant property must come under the ownership of the same entity. Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d 900, 903 (1997). Id. Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).


DemolitionAdam Leitman Bailey, P.C.New York Real Estate Attorneys


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An easement in a building or land will terminate when that burdened building or land is completely destroyed.




Recording ActAdam Leitman Bailey, P.C.New York Real Estate Attorneys

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A good faith purchaser for value is not bound by an easement which is not properly recorded prior to a purchase of the encumbered property. Adam Leitman Bailey, P.C. 2015


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The easement does not terminate notwithstanding a failure to record the easement if the good faith purchaser had actual knowledge and notice of any facts which would lead a reasonably prudent purchaser to make inquiries. Adam Leitman Bailey, P.C. 2015


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Abuse Adam Leitman Bailey, P.C. 2015Adam Leitman Bailey, P.C.New York Real Estate Attorneys

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Abusing the rights one has under an easement is not a ground for extinguishing the easement. Adam Leitman Bailey, P.C. 2015


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The mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment or any other ground to extinguish the easement. Adam Leitman Bailey, P.C. 2015


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That is not to say that the servient estate owner is without a remedy, but destruction of the easement is not that remedy. Adam Leitman Bailey, P.C. 2015


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Condemnation Adam Leitman Bailey, P.C. 2015Adam Leitman Bailey, P.C.New York Real Estate Attorneys

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A government can create an easement by way of condemnation

A governmental agency can also abolish an easement by condemning it Adam Leitman Bailey, P.C. 2015


A government can create an easement by way of condemnation. However, Strnad v. Brudnicki notes that a governmental agency can also abolish an easement by condemning it. This could take a number of forms, depending on the facts of the situation. One such set of facts would be when the government has condemned a plot of land, which plot is subject to an easement in favor of the adjoining property owner, and the government removes the easement by condemning it. 200 A.D.2d 735, 606 N.Y.S. 913 (2009), accord Zutt v. State, 99 A.D.3d 85, 949 N.Y.S.2d 402 (2d Dept. 2012).

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Release An easement once granted may be ended by a release in writing stating that the owner of the easement gives away all rights and remedies including the ability to sue under the easement. Adam Leitman Bailey, P.C. 2015Adam Leitman Bailey, P.C.New York Real Estate Attorneys

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Adam Leitman Bailey, P.C. 2015Adversary Demands Property Owner Vacate Area

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Adam Leitman Bailey, P.C. 2015Adam Leitman Bailey, P.C.Questions a Witness


Suggestions For Title Insurers When Dealing With Possible Boundary Disputes


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