overcoming land and development restrictions

114
1 © Adam Leitman Bailey, P.C. 2016 Overcoming Land and Development Restrictions: Adverse Possession, Easements and Other Property Obstacles June 22, 2016 Fidelity National Title Insurance Services, LLC Summer CLE

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Page 1: Overcoming Land and Development Restrictions

1

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Overcoming Land and Development Restrictions Adverse Possession

Easements and Other Property Obstacles

June 22 2016Fidelity National Title Insurance Services LLC

Summer CLE

2

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Adverse Possession as a Sword or a

Shield

Adam Leitman Bailey PCNew York Real Estate Attorneys

3

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4

Adverse Possession Defined Old LawTo establish adverse possession the following five elements must be proved Possession must be

1 Hostile and under a claim of right2 Actual3 Open and notorious4 Exclusive5 Continuous for the required period (10

years) Belotti v Bickhardt 228 NY 296 302 (NY 1920)

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5

Under the new law the requirements under the old law still exist However the

amendments have more narrowly defined what qualifies as actual possession and

what constitutes possession under a claim of right

NY CLS RPAPL sect 501

Adverse Possession Defined New Law

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Adam Leitman Bailey PCNew York Real Estate Attorneys

6

NY CLS RPAPL sect 512Essentials of adverse possession under written instrument or

judgment

ldquohellip land is deemed to have been possessed and occupied in any of the following cases 1 Where there has been acts sufficiently open to put a reasonably

diligent owner on notice2 Where it has been protected by a substantial enclosure except as

provided in subdivision one of section five hundred forty-three of this article

3 Where although not enclosed it has been used for the supply of fuel or of fencing timber either for the purposes of husbandry or for the ordinary use of the occupantrdquo

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

7

NY CLS RPAPL sect 543

Adverse possession how affected by acts across a boundary line

1 hellip the existence of de minimus [de minimis] non-structural encroachments including but not limited to fences hedges shrubbery plantings sheds and non-structural walls shall be deemed to be permissive and non-adverse

2 hellip the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowners property shall be deemed to be permissive and non-adverse

Adverse Possession Defined The New LawAmendments to the Actual Possession Requirement

Specific Exceptions

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Adam Leitman Bailey PCNew York Real Estate Attorneys

8

NY CLS RPAPL sect 522Essentials of adverse possession not under written

instrument or judgment

Land is deemed to have been possessed and occupied only1 Where there have been acts sufficiently open to put

a reasonably diligent owner on notice2 Where it has been protected by a substantial enclosure

except as provided in subdivision one of section five hundred forty-three of this article

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

9

Claim of RightThe 2008 Amendments went on to

specifically define ldquoClaim of Rightrdquo as having ldquoa reasonable basis for the belief that the property belongs to the adverse possessor or the property owner as the

case may berdquo RPAPL 501(3)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

10

Claim of TitleUnder the old law knowledge that rightful title belongs

to another did not defeat a claim of right Walling v Przybylo 7 NY3d 228 (NY 2006)

Claim of RightNY CLS RPAPL sect 501(3)

Under the new law a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be

Claim of Title (Old Law) vs Claim of Right (New Law)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

11

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of

adverse possession

A person or entity is an adverse possessor of real property when the person or entity occupies real property of another person or entity with or

without knowledge of the others superior ownership rights in a manner that would give the owner a cause of action for ejectment

bull RPAPL 501(1)copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

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14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

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Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

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24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

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>

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

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43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

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How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

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77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

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82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

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107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

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111

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112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 2: Overcoming Land and Development Restrictions

2

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Adverse Possession as a Sword or a

Shield

Adam Leitman Bailey PCNew York Real Estate Attorneys

3

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4

Adverse Possession Defined Old LawTo establish adverse possession the following five elements must be proved Possession must be

1 Hostile and under a claim of right2 Actual3 Open and notorious4 Exclusive5 Continuous for the required period (10

years) Belotti v Bickhardt 228 NY 296 302 (NY 1920)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

5

Under the new law the requirements under the old law still exist However the

amendments have more narrowly defined what qualifies as actual possession and

what constitutes possession under a claim of right

NY CLS RPAPL sect 501

Adverse Possession Defined New Law

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Adam Leitman Bailey PCNew York Real Estate Attorneys

6

NY CLS RPAPL sect 512Essentials of adverse possession under written instrument or

judgment

ldquohellip land is deemed to have been possessed and occupied in any of the following cases 1 Where there has been acts sufficiently open to put a reasonably

diligent owner on notice2 Where it has been protected by a substantial enclosure except as

provided in subdivision one of section five hundred forty-three of this article

3 Where although not enclosed it has been used for the supply of fuel or of fencing timber either for the purposes of husbandry or for the ordinary use of the occupantrdquo

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

7

NY CLS RPAPL sect 543

Adverse possession how affected by acts across a boundary line

1 hellip the existence of de minimus [de minimis] non-structural encroachments including but not limited to fences hedges shrubbery plantings sheds and non-structural walls shall be deemed to be permissive and non-adverse

2 hellip the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowners property shall be deemed to be permissive and non-adverse

Adverse Possession Defined The New LawAmendments to the Actual Possession Requirement

Specific Exceptions

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Adam Leitman Bailey PCNew York Real Estate Attorneys

8

NY CLS RPAPL sect 522Essentials of adverse possession not under written

instrument or judgment

Land is deemed to have been possessed and occupied only1 Where there have been acts sufficiently open to put

a reasonably diligent owner on notice2 Where it has been protected by a substantial enclosure

except as provided in subdivision one of section five hundred forty-three of this article

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

9

Claim of RightThe 2008 Amendments went on to

specifically define ldquoClaim of Rightrdquo as having ldquoa reasonable basis for the belief that the property belongs to the adverse possessor or the property owner as the

case may berdquo RPAPL 501(3)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

10

Claim of TitleUnder the old law knowledge that rightful title belongs

to another did not defeat a claim of right Walling v Przybylo 7 NY3d 228 (NY 2006)

Claim of RightNY CLS RPAPL sect 501(3)

Under the new law a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be

Claim of Title (Old Law) vs Claim of Right (New Law)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

11

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of

adverse possession

A person or entity is an adverse possessor of real property when the person or entity occupies real property of another person or entity with or

without knowledge of the others superior ownership rights in a manner that would give the owner a cause of action for ejectment

bull RPAPL 501(1)copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

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14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

copy Adam Leitman Bailey PC 2015

43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

copy Adam Leitman Bailey PC 2015

107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

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112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 3: Overcoming Land and Development Restrictions

3

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4

Adverse Possession Defined Old LawTo establish adverse possession the following five elements must be proved Possession must be

1 Hostile and under a claim of right2 Actual3 Open and notorious4 Exclusive5 Continuous for the required period (10

years) Belotti v Bickhardt 228 NY 296 302 (NY 1920)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

5

Under the new law the requirements under the old law still exist However the

amendments have more narrowly defined what qualifies as actual possession and

what constitutes possession under a claim of right

NY CLS RPAPL sect 501

Adverse Possession Defined New Law

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Adam Leitman Bailey PCNew York Real Estate Attorneys

6

NY CLS RPAPL sect 512Essentials of adverse possession under written instrument or

judgment

ldquohellip land is deemed to have been possessed and occupied in any of the following cases 1 Where there has been acts sufficiently open to put a reasonably

diligent owner on notice2 Where it has been protected by a substantial enclosure except as

provided in subdivision one of section five hundred forty-three of this article

3 Where although not enclosed it has been used for the supply of fuel or of fencing timber either for the purposes of husbandry or for the ordinary use of the occupantrdquo

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

7

NY CLS RPAPL sect 543

Adverse possession how affected by acts across a boundary line

1 hellip the existence of de minimus [de minimis] non-structural encroachments including but not limited to fences hedges shrubbery plantings sheds and non-structural walls shall be deemed to be permissive and non-adverse

2 hellip the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowners property shall be deemed to be permissive and non-adverse

Adverse Possession Defined The New LawAmendments to the Actual Possession Requirement

Specific Exceptions

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Adam Leitman Bailey PCNew York Real Estate Attorneys

8

NY CLS RPAPL sect 522Essentials of adverse possession not under written

instrument or judgment

Land is deemed to have been possessed and occupied only1 Where there have been acts sufficiently open to put

a reasonably diligent owner on notice2 Where it has been protected by a substantial enclosure

except as provided in subdivision one of section five hundred forty-three of this article

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

9

Claim of RightThe 2008 Amendments went on to

specifically define ldquoClaim of Rightrdquo as having ldquoa reasonable basis for the belief that the property belongs to the adverse possessor or the property owner as the

case may berdquo RPAPL 501(3)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

10

Claim of TitleUnder the old law knowledge that rightful title belongs

to another did not defeat a claim of right Walling v Przybylo 7 NY3d 228 (NY 2006)

Claim of RightNY CLS RPAPL sect 501(3)

Under the new law a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be

Claim of Title (Old Law) vs Claim of Right (New Law)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

11

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of

adverse possession

A person or entity is an adverse possessor of real property when the person or entity occupies real property of another person or entity with or

without knowledge of the others superior ownership rights in a manner that would give the owner a cause of action for ejectment

bull RPAPL 501(1)copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

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14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

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107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

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112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 4: Overcoming Land and Development Restrictions

4

Adverse Possession Defined Old LawTo establish adverse possession the following five elements must be proved Possession must be

1 Hostile and under a claim of right2 Actual3 Open and notorious4 Exclusive5 Continuous for the required period (10

years) Belotti v Bickhardt 228 NY 296 302 (NY 1920)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

5

Under the new law the requirements under the old law still exist However the

amendments have more narrowly defined what qualifies as actual possession and

what constitutes possession under a claim of right

NY CLS RPAPL sect 501

Adverse Possession Defined New Law

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Adam Leitman Bailey PCNew York Real Estate Attorneys

6

NY CLS RPAPL sect 512Essentials of adverse possession under written instrument or

judgment

ldquohellip land is deemed to have been possessed and occupied in any of the following cases 1 Where there has been acts sufficiently open to put a reasonably

diligent owner on notice2 Where it has been protected by a substantial enclosure except as

provided in subdivision one of section five hundred forty-three of this article

3 Where although not enclosed it has been used for the supply of fuel or of fencing timber either for the purposes of husbandry or for the ordinary use of the occupantrdquo

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

7

NY CLS RPAPL sect 543

Adverse possession how affected by acts across a boundary line

1 hellip the existence of de minimus [de minimis] non-structural encroachments including but not limited to fences hedges shrubbery plantings sheds and non-structural walls shall be deemed to be permissive and non-adverse

2 hellip the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowners property shall be deemed to be permissive and non-adverse

Adverse Possession Defined The New LawAmendments to the Actual Possession Requirement

Specific Exceptions

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Adam Leitman Bailey PCNew York Real Estate Attorneys

8

NY CLS RPAPL sect 522Essentials of adverse possession not under written

instrument or judgment

Land is deemed to have been possessed and occupied only1 Where there have been acts sufficiently open to put

a reasonably diligent owner on notice2 Where it has been protected by a substantial enclosure

except as provided in subdivision one of section five hundred forty-three of this article

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

9

Claim of RightThe 2008 Amendments went on to

specifically define ldquoClaim of Rightrdquo as having ldquoa reasonable basis for the belief that the property belongs to the adverse possessor or the property owner as the

case may berdquo RPAPL 501(3)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

10

Claim of TitleUnder the old law knowledge that rightful title belongs

to another did not defeat a claim of right Walling v Przybylo 7 NY3d 228 (NY 2006)

Claim of RightNY CLS RPAPL sect 501(3)

Under the new law a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be

Claim of Title (Old Law) vs Claim of Right (New Law)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

11

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of

adverse possession

A person or entity is an adverse possessor of real property when the person or entity occupies real property of another person or entity with or

without knowledge of the others superior ownership rights in a manner that would give the owner a cause of action for ejectment

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Adam Leitman Bailey PCNew York Real Estate Attorneys

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

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14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

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24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

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>

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

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43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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52

Third Department Cases

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In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

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How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

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82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

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107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

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112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 5: Overcoming Land and Development Restrictions

5

Under the new law the requirements under the old law still exist However the

amendments have more narrowly defined what qualifies as actual possession and

what constitutes possession under a claim of right

NY CLS RPAPL sect 501

Adverse Possession Defined New Law

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Adam Leitman Bailey PCNew York Real Estate Attorneys

6

NY CLS RPAPL sect 512Essentials of adverse possession under written instrument or

judgment

ldquohellip land is deemed to have been possessed and occupied in any of the following cases 1 Where there has been acts sufficiently open to put a reasonably

diligent owner on notice2 Where it has been protected by a substantial enclosure except as

provided in subdivision one of section five hundred forty-three of this article

3 Where although not enclosed it has been used for the supply of fuel or of fencing timber either for the purposes of husbandry or for the ordinary use of the occupantrdquo

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

7

NY CLS RPAPL sect 543

Adverse possession how affected by acts across a boundary line

1 hellip the existence of de minimus [de minimis] non-structural encroachments including but not limited to fences hedges shrubbery plantings sheds and non-structural walls shall be deemed to be permissive and non-adverse

2 hellip the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowners property shall be deemed to be permissive and non-adverse

Adverse Possession Defined The New LawAmendments to the Actual Possession Requirement

Specific Exceptions

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Adam Leitman Bailey PCNew York Real Estate Attorneys

8

NY CLS RPAPL sect 522Essentials of adverse possession not under written

instrument or judgment

Land is deemed to have been possessed and occupied only1 Where there have been acts sufficiently open to put

a reasonably diligent owner on notice2 Where it has been protected by a substantial enclosure

except as provided in subdivision one of section five hundred forty-three of this article

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

9

Claim of RightThe 2008 Amendments went on to

specifically define ldquoClaim of Rightrdquo as having ldquoa reasonable basis for the belief that the property belongs to the adverse possessor or the property owner as the

case may berdquo RPAPL 501(3)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

10

Claim of TitleUnder the old law knowledge that rightful title belongs

to another did not defeat a claim of right Walling v Przybylo 7 NY3d 228 (NY 2006)

Claim of RightNY CLS RPAPL sect 501(3)

Under the new law a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be

Claim of Title (Old Law) vs Claim of Right (New Law)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

11

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of

adverse possession

A person or entity is an adverse possessor of real property when the person or entity occupies real property of another person or entity with or

without knowledge of the others superior ownership rights in a manner that would give the owner a cause of action for ejectment

bull RPAPL 501(1)copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

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14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

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>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

copy Adam Leitman Bailey PC 2015

43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

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How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

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82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

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107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

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112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 6: Overcoming Land and Development Restrictions

6

NY CLS RPAPL sect 512Essentials of adverse possession under written instrument or

judgment

ldquohellip land is deemed to have been possessed and occupied in any of the following cases 1 Where there has been acts sufficiently open to put a reasonably

diligent owner on notice2 Where it has been protected by a substantial enclosure except as

provided in subdivision one of section five hundred forty-three of this article

3 Where although not enclosed it has been used for the supply of fuel or of fencing timber either for the purposes of husbandry or for the ordinary use of the occupantrdquo

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

7

NY CLS RPAPL sect 543

Adverse possession how affected by acts across a boundary line

1 hellip the existence of de minimus [de minimis] non-structural encroachments including but not limited to fences hedges shrubbery plantings sheds and non-structural walls shall be deemed to be permissive and non-adverse

2 hellip the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowners property shall be deemed to be permissive and non-adverse

Adverse Possession Defined The New LawAmendments to the Actual Possession Requirement

Specific Exceptions

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Adam Leitman Bailey PCNew York Real Estate Attorneys

8

NY CLS RPAPL sect 522Essentials of adverse possession not under written

instrument or judgment

Land is deemed to have been possessed and occupied only1 Where there have been acts sufficiently open to put

a reasonably diligent owner on notice2 Where it has been protected by a substantial enclosure

except as provided in subdivision one of section five hundred forty-three of this article

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

9

Claim of RightThe 2008 Amendments went on to

specifically define ldquoClaim of Rightrdquo as having ldquoa reasonable basis for the belief that the property belongs to the adverse possessor or the property owner as the

case may berdquo RPAPL 501(3)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

10

Claim of TitleUnder the old law knowledge that rightful title belongs

to another did not defeat a claim of right Walling v Przybylo 7 NY3d 228 (NY 2006)

Claim of RightNY CLS RPAPL sect 501(3)

Under the new law a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be

Claim of Title (Old Law) vs Claim of Right (New Law)

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11

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of

adverse possession

A person or entity is an adverse possessor of real property when the person or entity occupies real property of another person or entity with or

without knowledge of the others superior ownership rights in a manner that would give the owner a cause of action for ejectment

bull RPAPL 501(1)copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

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14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

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>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

copy Adam Leitman Bailey PC 2015

43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

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107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

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112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 7: Overcoming Land and Development Restrictions

7

NY CLS RPAPL sect 543

Adverse possession how affected by acts across a boundary line

1 hellip the existence of de minimus [de minimis] non-structural encroachments including but not limited to fences hedges shrubbery plantings sheds and non-structural walls shall be deemed to be permissive and non-adverse

2 hellip the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowners property shall be deemed to be permissive and non-adverse

Adverse Possession Defined The New LawAmendments to the Actual Possession Requirement

Specific Exceptions

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Adam Leitman Bailey PCNew York Real Estate Attorneys

8

NY CLS RPAPL sect 522Essentials of adverse possession not under written

instrument or judgment

Land is deemed to have been possessed and occupied only1 Where there have been acts sufficiently open to put

a reasonably diligent owner on notice2 Where it has been protected by a substantial enclosure

except as provided in subdivision one of section five hundred forty-three of this article

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

9

Claim of RightThe 2008 Amendments went on to

specifically define ldquoClaim of Rightrdquo as having ldquoa reasonable basis for the belief that the property belongs to the adverse possessor or the property owner as the

case may berdquo RPAPL 501(3)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

10

Claim of TitleUnder the old law knowledge that rightful title belongs

to another did not defeat a claim of right Walling v Przybylo 7 NY3d 228 (NY 2006)

Claim of RightNY CLS RPAPL sect 501(3)

Under the new law a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be

Claim of Title (Old Law) vs Claim of Right (New Law)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

11

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of

adverse possession

A person or entity is an adverse possessor of real property when the person or entity occupies real property of another person or entity with or

without knowledge of the others superior ownership rights in a manner that would give the owner a cause of action for ejectment

bull RPAPL 501(1)copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

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14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

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>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

copy Adam Leitman Bailey PC 2015

43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

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107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

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112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 8: Overcoming Land and Development Restrictions

8

NY CLS RPAPL sect 522Essentials of adverse possession not under written

instrument or judgment

Land is deemed to have been possessed and occupied only1 Where there have been acts sufficiently open to put

a reasonably diligent owner on notice2 Where it has been protected by a substantial enclosure

except as provided in subdivision one of section five hundred forty-three of this article

Adverse Possession Defined New LawAmendments to Actual Possession Requirement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

9

Claim of RightThe 2008 Amendments went on to

specifically define ldquoClaim of Rightrdquo as having ldquoa reasonable basis for the belief that the property belongs to the adverse possessor or the property owner as the

case may berdquo RPAPL 501(3)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

10

Claim of TitleUnder the old law knowledge that rightful title belongs

to another did not defeat a claim of right Walling v Przybylo 7 NY3d 228 (NY 2006)

Claim of RightNY CLS RPAPL sect 501(3)

Under the new law a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be

Claim of Title (Old Law) vs Claim of Right (New Law)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

11

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of

adverse possession

A person or entity is an adverse possessor of real property when the person or entity occupies real property of another person or entity with or

without knowledge of the others superior ownership rights in a manner that would give the owner a cause of action for ejectment

bull RPAPL 501(1)copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

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14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

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24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

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>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

copy Adam Leitman Bailey PC 2015

43

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44

copy Adam Leitman Bailey PC 2015

45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

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107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

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112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 9: Overcoming Land and Development Restrictions

9

Claim of RightThe 2008 Amendments went on to

specifically define ldquoClaim of Rightrdquo as having ldquoa reasonable basis for the belief that the property belongs to the adverse possessor or the property owner as the

case may berdquo RPAPL 501(3)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

10

Claim of TitleUnder the old law knowledge that rightful title belongs

to another did not defeat a claim of right Walling v Przybylo 7 NY3d 228 (NY 2006)

Claim of RightNY CLS RPAPL sect 501(3)

Under the new law a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be

Claim of Title (Old Law) vs Claim of Right (New Law)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

11

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of

adverse possession

A person or entity is an adverse possessor of real property when the person or entity occupies real property of another person or entity with or

without knowledge of the others superior ownership rights in a manner that would give the owner a cause of action for ejectment

bull RPAPL 501(1)copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

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14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

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24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

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>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

copy Adam Leitman Bailey PC 2015

43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

copy Adam Leitman Bailey PC 2015

107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 10: Overcoming Land and Development Restrictions

10

Claim of TitleUnder the old law knowledge that rightful title belongs

to another did not defeat a claim of right Walling v Przybylo 7 NY3d 228 (NY 2006)

Claim of RightNY CLS RPAPL sect 501(3)

Under the new law a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be

Claim of Title (Old Law) vs Claim of Right (New Law)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

11

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of

adverse possession

A person or entity is an adverse possessor of real property when the person or entity occupies real property of another person or entity with or

without knowledge of the others superior ownership rights in a manner that would give the owner a cause of action for ejectment

bull RPAPL 501(1)copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

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14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

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24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

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>

copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

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43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

copy Adam Leitman Bailey PC 2015

107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 11: Overcoming Land and Development Restrictions

11

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of

adverse possession

A person or entity is an adverse possessor of real property when the person or entity occupies real property of another person or entity with or

without knowledge of the others superior ownership rights in a manner that would give the owner a cause of action for ejectment

bull RPAPL 501(1)copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

copy Adam Leitman Bailey PC 2015

14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

copy Adam Leitman Bailey PC 2015

19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

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>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

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43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

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77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

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82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

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107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

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111

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112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 12: Overcoming Land and Development Restrictions

12

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR sect 212Possession necessary to recover real property An action to recover real property or its possession cannot be commenced unless the plaintiff or his

predecessor in interest was seized or possessed of the premises within ten years before the

commencement of the action

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

copy Adam Leitman Bailey PC 2015

14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

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>

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

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82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

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107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 13: Overcoming Land and Development Restrictions

Walling v PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a ldquoclaim of rightrdquo

copy Adam Leitman Bailey PC 2015

14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

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>

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

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43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

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71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

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106

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107

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Adam Leitman Bailey PCNew York Real Estate Attorneys

108

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Adam Leitman Bailey PCNew York Real Estate Attorneys

109

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Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 14: Overcoming Land and Development Restrictions

14

In Walling v Przybylo the Wallings and the Przybylos owned adjoining properties The Wallings began using a

portion of the Przybylosrsquo property as their own

bull Bulldozed and deposited fill and topsoil on disputed propertybull Dug a trench and installed pipes for the purpose of carrying water to and under the

disputed parcel ultimately discharging the water in and over the disputed parcel bull Constructed an underground dog wire fence to enclose their dog and continuously

mowed graded raked planted and watered the grassy area in dispute bull Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of

the pipelinebull Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the

Wallings near the northwesterly corner of the grassy part of the disputed territory bull Since 1992 the post and birdhouse have remained in place

Walling v Przybylo 7 NY3d 228 230-231 (NY 2006) See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009

The New York L J Feb 11 2009 at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

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17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

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24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

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>

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

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43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

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How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 15: Overcoming Land and Development Restrictions

15

In 2004 the Przybylos discovered that they had title to the portion of the land that the Wallings had been using The Wallings filed suit to quiet title The

Przybylos attempted to prove that Wallings knew they did not own the disputed parcel

Holding The Court of Appeals held for the Wallings and declared that ldquoactual knowledge that

another person is the title owner does not in and of itself defeat a claim of right by an adverse

possessorrdquo Walling v Przybylo 7 NY3d 228 (NY 2006)

See Adam Leitman Bailey amp John M Desiderio Adverse Possession Changes Make Result Less Certain 2009 The New York L J Feb 11 2009

at (2009)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

16

copy Adam Leitman Bailey PC 2015

17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 16: Overcoming Land and Development Restrictions

16

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17

copy Adam Leitman Bailey PC 2015

18

copy Adam Leitman Bailey PC 2015

19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

copy Adam Leitman Bailey PC 2015

43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

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82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 17: Overcoming Land and Development Restrictions

17

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18

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19

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20

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21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 18: Overcoming Land and Development Restrictions

18

copy Adam Leitman Bailey PC 2015

19

copy Adam Leitman Bailey PC 2015

20

copy Adam Leitman Bailey PC 2015

21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

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40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

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71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

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82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 19: Overcoming Land and Development Restrictions

19

copy Adam Leitman Bailey PC 2015

20

copy Adam Leitman Bailey PC 2015

21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 20: Overcoming Land and Development Restrictions

20

copy Adam Leitman Bailey PC 2015

21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 21: Overcoming Land and Development Restrictions

21

bull In accordance with the statutory mandate the Court of Appeals has ruled in Estate of Becker v Murtagh that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective the old law will apply

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7 2008

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Court of AppealsEstate of Becker v Murtagh

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

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copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

copy Adam Leitman Bailey PC 2015

43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 22: Overcoming Land and Development Restrictions

22

bull To date there is only one Adverse Possession case decided in the First Department Unfortunately while using cases from the old law the court did not specify whether applying the old or new law

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate AttorneysFirst Department Cases

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 23: Overcoming Land and Development Restrictions

copy Adam Leitman Bailey PC 2015

24

Historical Photograph of 63 East 92nd Street Front Areaway

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

copy Adam Leitman Bailey PC 2015

43

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44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

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71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

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77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

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82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 24: Overcoming Land and Development Restrictions

24

Historical Photograph of 63 East 92nd Street Front Areaway

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 25: Overcoming Land and Development Restrictions

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 26: Overcoming Land and Development Restrictions

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copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

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42

copy Adam Leitman Bailey PC 2015

43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 27: Overcoming Land and Development Restrictions

copy Adam Leitman Bailey PC 2015

>

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

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44

copy Adam Leitman Bailey PC 2015

45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

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71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

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77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 28: Overcoming Land and Development Restrictions

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 29: Overcoming Land and Development Restrictions

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 30: Overcoming Land and Development Restrictions

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copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 31: Overcoming Land and Development Restrictions

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copy Adam Leitman Bailey PC 2015

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copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

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44

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45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

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73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

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77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 32: Overcoming Land and Development Restrictions

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copy Adam Leitman Bailey PC 2015

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copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

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Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 33: Overcoming Land and Development Restrictions

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 34: Overcoming Land and Development Restrictions

copy Adam Leitman Bailey PC 2015

copy Adam Leitman Bailey PC 2015

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37

Second Department

Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 35: Overcoming Land and Development Restrictions

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37

Second Department

Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

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44

copy Adam Leitman Bailey PC 2015

45

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46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

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How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 36: Overcoming Land and Development Restrictions

copy Adam Leitman Bailey PC 2015

37

Second Department

Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 37: Overcoming Land and Development Restrictions

37

Second Department

Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 38: Overcoming Land and Development Restrictions

38

Second Department Casesbull Hartman v Goldman applied the new

law even though the alleged adverse possession would have vested in 1997 because the parties stipulated that the 2008 amendments applied

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 39: Overcoming Land and Development Restrictions

Hartman v GoldmanThe First Case Using the New Law

copy Adam Leitman Bailey PC 2015

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

copy Adam Leitman Bailey PC 2015

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

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Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

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Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

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The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 40: Overcoming Land and Development Restrictions

40

Actual Possession Under the New LawldquoDe minimus encroachmentsrdquo

The First Case Using the New Lawbull Section 9 of the Amendments states that the new law

ldquoshall take effect immediately and shall apply to claims filed on or after such effective daterdquo

bull However Courts have recognized that where adverse possession rights have vested prior to the amendments the old law should still apply

bull In Hartman v Goldman the alleged adverse possession rights would have vested prior to the enactment of the amendments

bull However due to clever lawyering defendantrsquos attorneys were able to get the plaintiff to stipulate that the new law applied and the court did not disturb their stipulation

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41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

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Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

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Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

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Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

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Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

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Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

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Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

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71

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72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

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75

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76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

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77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

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EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

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Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

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Adam Leitman Bailey PCNew York Real Estate Attorneys

91

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DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

93

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Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

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Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

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Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 41: Overcoming Land and Development Restrictions

41

copy Adam Leitman Bailey PC 2015

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

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Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

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Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 42: Overcoming Land and Development Restrictions

42

copy Adam Leitman Bailey PC 2015

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 43: Overcoming Land and Development Restrictions

43

copy Adam Leitman Bailey PC 2015

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

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Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

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Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 44: Overcoming Land and Development Restrictions

44

copy Adam Leitman Bailey PC 2015

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

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Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

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Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 45: Overcoming Land and Development Restrictions

45

copy Adam Leitman Bailey PC 2015

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 46: Overcoming Land and Development Restrictions

46

Second Department Casesbull In Calder v 731 Bergan LLC adverse possession

rights would have vested when the statute of limitations expired in 1984 but without taking note of that fact the Court nevertheless applied the new law holding that upon the facts alleged the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

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Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 47: Overcoming Land and Development Restrictions

47

Second Department Cases

bull Wright v Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

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Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

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Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

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68

Easements

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bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

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bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

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Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

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Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 48: Overcoming Land and Development Restrictions

48

Second Deprsquot Applies Old LawHogan v Kelly

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The court held that a ldquoclaim of rightrdquo could nevertheless be established in a case filed after July 7 2008 where adverse possession vested prior to that date regardless of whether or not the adverse possessor ldquohad actual knowledge of the true owner at the time of possessionrdquo citing Walling As a result the court held that defendantsrsquo knowledge that someone other than themselves had title to the property did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

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Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

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Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 49: Overcoming Land and Development Restrictions

49

Second Deprsquot Applies Old LawShilkoff v

Longhitano

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Shilkoff v Longhitano the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 50: Overcoming Land and Development Restrictions

50

Second Deprsquot Applies Old LawMayarsquos Black Creek v Angelo Balbo

Realty

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Mayarsquos Black Creek v Angelo Balbo Realty the court declined to decide whether the old law or the new should apply and applied both stating that the plaintiffrsquos adverse possession cause of action would be upheld in either circumstance However the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a ldquoreasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may berdquo

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

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UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 51: Overcoming Land and Development Restrictions

51

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 52: Overcoming Land and Development Restrictions

52

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In Ziegler v Serrano the Court applied the new law to a case where adverse possession had vested in 1995 In Ziegler Defendant and her husband owned property as tenants by the entirety from 1972-1984 at which point the defendant abandoned her husband and left the property Defendantrsquos husband received judgment for divorce and partition of the property due to defendantrsquos default Defendantrsquos husband now having fee title in the property deeded the property to plaintiffs in 1985

Ziegler v Serrano

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 53: Overcoming Land and Development Restrictions

53

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The plaintiffs then continued to occupy the premises as their residence In 1991 upon motion made by the defendant and her husband both the divorce and partition judgments against the defendant were vacated for improper service In 1992 defendant sued plaintiffs challenging their title to the property The action was dismissed due to failure to prosecute However in 2008 plaintiffrsquos moved to quiet title 74 AD3d 1610 (3d Dept 2010)

Ziegler v Serrano

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

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Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

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Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 54: Overcoming Land and Development Restrictions

54

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 2008 the Ziegler Court held that plaintiffsrsquo claim of right was based on a ldquoreasonable basisrdquo as it was pursuant to a written instrument -- a deed Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period adverse possession was upheld The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law but noted that the parties did not question the propriety of applying the 2008 legislation and therefore the Court declined to address the issue The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law

Ziegler v Serrano

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 55: Overcoming Land and Development Restrictions

55

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

In contrast in Barra v Norfolk S Ry Co a case commenced in March of 2009 the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended Plaintiffs owned land adjacent to railroad tracks owned by the defendant In March 2008 defendant closed the middle crossing Plaintiff claimed among other things that they acquired a prescriptive easement for ingress and egress over the northern crossing

Barra v Norfolk S Ry Co

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 56: Overcoming Land and Development Restrictions

56

Third Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

The Court held that when all of the elements of a prescriptive easement are present except express hostility hostility is generally presumed shifting the burden to the defendant to show that the use was in fact permissive As defendant failed to sufficiently prove that permission was implied from the beginning the Court held that summary judgment for the defendant was inappropriate 75 AD3d 821 (3d Dept 2010)

Barra v Norfolk S Ry Co

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

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Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 57: Overcoming Land and Development Restrictions

57

Franza v Olin73 AD3d 44 (NY App Div 4th Deprsquot 2010)

Fourth Department

Fourth Department Cases

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 58: Overcoming Land and Development Restrictions

copy Adam Leitman Bailey PC 2015

How To Legally Encroach On

Neighbors Land or Public Street

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 59: Overcoming Land and Development Restrictions

59

You have one year to commence action to remove land if not

exceeding six inches

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 60: Overcoming Land and Development Restrictions

60

A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons a town or a village

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 61: Overcoming Land and Development Restrictions

61

Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1 1940

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 62: Overcoming Land and Development Restrictions

62

A front or exterior wall encroachment erected after January 1 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 63: Overcoming Land and Development Restrictions

63

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25 1899

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 64: Overcoming Land and Development Restrictions

64

Allows any part of a building projecting into a public street on January 1 1938 to remain until its removal is directed by the City Council

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 65: Overcoming Land and Development Restrictions

65

Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1 1960

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 66: Overcoming Land and Development Restrictions

66

copy Adam Leitman Bailey PC 2016

UNDERSTANDING EASEMENTS

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 67: Overcoming Land and Development Restrictions

67

CREATIONbullEasements can be created in four ways

GrantImplication from prior use Implication from necessity andPrescription

copy Adam Leitman Bailey PC 2015

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 68: Overcoming Land and Development Restrictions

68

Easements

copy Adam Leitman Bailey PC 2015

bull An easement is ldquoan 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 hellip protection hellip 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 conveyancerdquo

Adam Leitman Bailey PCNew York Real Estate Attorneys

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 69: Overcoming Land and Development Restrictions

69

copy Adam Leitman Bailey PC 2015

Easement by Grant

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 70: Overcoming Land and Development Restrictions

70

copy Adam Leitman Bailey PC 2015

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 71: Overcoming Land and Development Restrictions

71

copy Adam Leitman Bailey PC 2015

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 72: Overcoming Land and Development Restrictions

72

L 80 P394 Sec 51) h2) H Cook Mary ux 3) Oliver H Payne

BAP Ely ndash 5th Av 32rsquo 2rdquo S-79th StreetasympS 70rsquoasympE 115rsquoasympN 102rsquo 2rdquoasympW 15rsquoasympS 32rsquoasympW 100rsquo to PB

Together 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

copy Adam Leitman Bailey PC 2015

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 73: Overcoming Land and Development Restrictions

73

copy Adam Leitman Bailey PC 2015

bull 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 PCNew York Real Estate Attorneys

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 74: Overcoming Land and Development Restrictions

74

Easement AppurtenantldquoTOGETHER 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 foreverrdquo

copy Adam Leitman Bailey PC 2015

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 75: Overcoming Land and Development Restrictions

75

copy Adam Leitman Bailey PC 2015

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 76: Overcoming Land and Development Restrictions

76

EASEMENTS BY IMPLICATION FROM PRIOR USE

bullThere 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 landrsquos use and enjoyment

copy Adam Leitman Bailey PC 2015

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 77: Overcoming Land and Development Restrictions

77

The ldquonecessityrdquo required for an implied easement based upon preexisting use is only ldquoreasonable

necessityrdquo in contrast to absolute necessity required to establish an implied easement by

necessity Four S Realty Co v Dynko 210 AD 2d 622 623 619 NYS2d 855 856 (1994)

copy Adam Leitman Bailey PC 2015

EASEMENTS BY IMPLICATION FROM PRIOR USE

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 78: Overcoming Land and Development Restrictions

78

copy Adam Leitman Bailey PC 2015

Easement of Necessity

Adam Leitman Bailey PCNew York Real Estate Attorneys

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 79: Overcoming Land and Development Restrictions

79

bull 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 bull Paine v Chandler 134 NY 385 (1892) bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685 NYS2d 900 903

(1997)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 80: Overcoming Land and Development Restrictions

80

bull 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 bull Will v Gates 89 NY2d 778 784 680 NE2d 1197 1200 685

NYS2d 900 903 (1997) bull Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 81: Overcoming Land and Development Restrictions

81

EASEMENTS BY PRESCRIPTIONbull An 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 AD2d 690 691 878 NYS2d 193 (2009) Hammond v Zehner 21 NY 118 (1860) The prescriptive period is 10 years 315 Main

Street Poughkeepsie LLC v WA 319 Main LLC 62 AD2d 690 691 878 NYS2d 193 194 (2009) (citing NYRPAPL sect501)

copy Adam Leitman Bailey PC 2015

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 82: Overcoming Land and Development Restrictions

82

bull There are 8 ways to terminate an easementbull Abandonment bull Merger bull End of Necessity bull Demolition bull Recording Actbull Condemnation bull Adverse Possessionbull Release

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 83: Overcoming Land and Development Restrictions

83

copy Adam Leitman Bailey PC 2015

Abandonment Adam Leitman Bailey PC

New York Real Estate Attorneys

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 84: Overcoming Land and Development Restrictions

84

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 85: Overcoming Land and Development Restrictions

85

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

bullIssue Whether the defendantrsquos easement to lay and maintain a pipeline over plaintiffrsquos lands terminated due to abandonment

bullRule Nonuse alone even for a long period of time is not enough to constitute abandonment Id at 375 211 NYS2d at 445

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 86: Overcoming Land and Development Restrictions

86

Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)

Application Defendant laid a natural gas pipeline four feet under the ground across plaintiffrsquos lands Id at 374 211 NYS2d at 444 Id Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned Id Plaintiffrsquos nonuse of land from 1932 to 1957 which was when the defendant constructed the pipeline over plaintiffrsquos 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 87: Overcoming Land and Development Restrictions

87

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Issue Whether there is a potential claim by defendant for the termination of an easement by abandonment

bull The acts must clearly demonstrate the permanent relinquishment of all right to the easement Id The ldquomere 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 88: Overcoming Land and Development Restrictions

88

Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 161 (1960)

bull Application Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a lsquolane When originally divided the lane was the only possible avenue to a public street from the defendantrsquos 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

bull Conclusion Yes Defendant might be able to prove that the easement was abandoned

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 89: Overcoming Land and Development Restrictions

89

copy Adam Leitman Bailey PC 2015

Merger

Adam Leitman Bailey PCNew York Real Estate Attorneys

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 90: Overcoming Land and Development Restrictions

90

bull Under the merger doctrine an easement will terminate when the dominant and servient estates become vested in one person

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 91: Overcoming Land and Development Restrictions

91

copy Adam Leitman Bailey PC 2015

DemolitionAdam Leitman Bailey PC

New York Real Estate Attorneys

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 92: Overcoming Land and Development Restrictions

92

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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 93: Overcoming Land and Development Restrictions

93

copy Adam Leitman Bailey PC 2015

Recording Act

Adam Leitman Bailey PCNew York Real Estate Attorneys

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 94: Overcoming Land and Development Restrictions

94

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 95: Overcoming Land and Development Restrictions

95

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 96: Overcoming Land and Development Restrictions

96

Abuse

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 97: Overcoming Land and Development Restrictions

97

bull Abusing the rights one has under an easement is not a ground for extinguishing the easement

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 98: Overcoming Land and Development Restrictions

98

bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 99: Overcoming Land and Development Restrictions

99

bull That is not to say that the servient estate owner is without a remedy but destruction of the easement is not that remedy

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 100: Overcoming Land and Development Restrictions

100

Condemnation

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 101: Overcoming Land and Development Restrictions

101

bull A government can create an easement by way of condemnation

bull A governmental agency can also abolish an easement by condemning it

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 102: Overcoming Land and Development Restrictions

102

Release bull 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

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 103: Overcoming Land and Development Restrictions

103

copy Adam Leitman Bailey PC 2015

Adversary Demands Property Owner Vacate Area

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 104: Overcoming Land and Development Restrictions

104

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 105: Overcoming Land and Development Restrictions

105

copy Adam Leitman Bailey PC 2015

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 106: Overcoming Land and Development Restrictions

106

copy Adam Leitman Bailey PC 2015

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 107: Overcoming Land and Development Restrictions

107

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 108: Overcoming Land and Development Restrictions

108

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 109: Overcoming Land and Development Restrictions

109

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCNew York Real Estate Attorneys

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 110: Overcoming Land and Development Restrictions

110

copy Adam Leitman Bailey PC 2015

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 111: Overcoming Land and Development Restrictions

111

copy Adam Leitman Bailey PC 2015

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 112: Overcoming Land and Development Restrictions

112

copy Adam Leitman Bailey PC 2015

Adam Leitman Bailey PCQuestions a Witness

>

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 113: Overcoming Land and Development Restrictions

113

copy Adam Leitman Bailey PC 2016

Suggestions For Title Insurers When Dealing With Possible Boundary

Disputes

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
  • Slide 98
  • Slide 99
  • Slide 100
  • Slide 101
  • Slide 102
  • Slide 103
  • Slide 104
  • Slide 105
  • Slide 106
  • Slide 107
  • Slide 108
  • Slide 109
  • Slide 110
  • Slide 111
  • Slide 112
  • Slide 113
  • The End
Page 114: Overcoming Land and Development Restrictions

copy Adam Leitman Bailey PC 2015

The End

  • Slide 1
  • Slide 2
  • Slide 3
  • Adverse Possession Defined Old Law
  • Adverse Possession Defined New Law
  • Adverse Possession Defined New Law Amendments to Actual Posses
  • Slide 7
  • Slide 8
  • Claim of Right
  • Claim of Title (Old Law) vs Claim of Right (New Law)
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Statute of Limitations for Adverse Possession Remains the same
  • Walling v Pryzbylo
  • Slide 14
  • Slide 15
  • Slide 16
  • Slide 17
  • Slide 18
  • Slide 19
  • Slide 20
  • In accordance with the statutory mandate the Court of Appeals
  • To date there is only one Adverse Possession case decided in t
  • Slide 23
  • Slide 24
  • Slide 25
  • Slide 26
  • Slide 27
  • Slide 28
  • Slide 29
  • Slide 30
  • Slide 31
  • Slide 32
  • Slide 33
  • Slide 34
  • Slide 35
  • Slide 36
  • Slide 37
  • Hartman v Goldman applied the new law even though the alleged
  • Hartman v Goldman
  • Actual Possession Under the New Law ldquoDe minimus encroachmentsrdquo
  • Slide 41
  • Slide 42
  • Slide 43
  • Slide 44
  • Slide 45
  • In Calder v 731 Bergan LLC adverse possession rights would h
  • Wright v Sokoloff applied the new law because both the commenc
  • Hogan v Kelly
  • Shilkoff v Longhitano
  • Mayarsquos Black Creek v Angelo Balbo Realty
  • Slide 51
  • In Ziegler v Serrano the Court applied the new law to a case
  • The plaintiffs then continued to occupy the premises as their
  • Specifically mentioning RPAPL sectsect501(3) and 511 as amended in 20
  • In contrast in Barra v Norfolk S Ry Co a case commenced i
  • The Court held that when all of the elements of a prescriptive
  • Franza v Olin 73 AD3d 44 (NY App Div 4th Deprsquot 2010) Fou
  • How To Legally Encroach On Neighbors Land or Public Street
  • Slide 59
  • Slide 60
  • Slide 61
  • Slide 62
  • Slide 63
  • Slide 64
  • Slide 65
  • Slide 66
  • CREATION
  • Slide 68
  • Slide 69
  • Slide 70
  • Slide 71
  • Slide 72
  • Slide 73
  • Easement Appurtenant
  • Slide 75
  • EASEMENTS BY IMPLICATION FROM PRIOR USE
  • EASEMENTS BY IMPLICATION FROM PRIOR USE (2)
  • Slide 78
  • Slide 79
  • Slide 80
  • EASEMENTS BY PRESCRIPTION
  • Slide 82
  • Slide 83
  • Slide 84
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961)
  • Banach v Homes Gas Co 12 AD2d 373 211 NYS2d 443 (1961) (2)
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1
  • Gerbig v Zumpano 7 NY2d 327 165 NE2d 178 197 NYS2d 1 (2)
  • Slide 89
  • Slide 90
  • Slide 91
  • Slide 92
  • Slide 93
  • Slide 94
  • Slide 95
  • Slide 96
  • Slide 97
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  • The End