overcoming land and development restrictions
TRANSCRIPT
1
copy Adam Leitman Bailey PC 2016
Overcoming Land and Development Restrictions Adverse Possession
Easements and Other Property Obstacles
June 22 2016Fidelity National Title Insurance Services LLC
Summer CLE
2
copy Adam Leitman Bailey PC 2015
Adverse Possession as a Sword or a
Shield
Adam Leitman Bailey PCNew York Real Estate Attorneys
3
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
2
copy Adam Leitman Bailey PC 2015
Adverse Possession as a Sword or a
Shield
Adam Leitman Bailey PCNew York Real Estate Attorneys
3
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
3
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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)
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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
copy Adam Leitman Bailey PC 2015
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
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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)
copy Adam Leitman Bailey PC 2015
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)
copy Adam Leitman Bailey PC 2015
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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)
copy Adam Leitman Bailey PC 2015
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
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)
copy Adam Leitman Bailey PC 2015
Adam Leitman Bailey PCNew York Real Estate Attorneys
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
16
copy Adam Leitman Bailey PC 2015
17
copy Adam Leitman Bailey PC 2015
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
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
17
copy Adam Leitman Bailey PC 2015
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
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
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
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
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
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
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
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
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
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
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)
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
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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
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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
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
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
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)
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
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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
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
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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
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
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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
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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
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
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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
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
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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
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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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)
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
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
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
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
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
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
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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
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
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
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
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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
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)
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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
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
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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
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
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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
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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
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)
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
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
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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
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
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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
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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)
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
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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
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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
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
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
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
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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
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
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
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
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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
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Adam Leitman Bailey PCQuestions a Witness
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
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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
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
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
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
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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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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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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Merger
Adam Leitman Bailey PCNew York Real Estate Attorneys
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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
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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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96
Abuse
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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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Adversary Demands Property Owner Vacate Area
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Adam Leitman Bailey PCNew York Real Estate Attorneys
110
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111
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Adam Leitman Bailey PCQuestions a Witness
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
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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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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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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
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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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112
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Adam Leitman Bailey PCQuestions a Witness
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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
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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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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
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Abuse
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Adam Leitman Bailey PCNew York Real Estate Attorneys
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bull Abusing the rights one has under an easement is not a ground for extinguishing the easement
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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
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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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112
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Adam Leitman Bailey PCQuestions a Witness
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
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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
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Abuse
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Adam Leitman Bailey PCNew York Real Estate Attorneys
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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
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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 PCQuestions a Witness
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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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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
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Abuse
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Adam Leitman Bailey PCNew York Real Estate Attorneys
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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 PCQuestions a Witness
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
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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
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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 PCQuestions a Witness
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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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bull Abusing the rights one has under an easement is not a ground for extinguishing the easement
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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
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Adam Leitman Bailey PCQuestions a Witness
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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
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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
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
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Adam Leitman Bailey PCQuestions a Witness
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Abuse
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Adam Leitman Bailey PCNew York Real Estate Attorneys
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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
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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
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
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Adam Leitman Bailey PCQuestions a Witness
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bull Abusing the rights one has under an easement is not a ground for extinguishing the easement
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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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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
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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
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Adam Leitman Bailey PCQuestions a Witness
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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
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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
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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
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Adam Leitman Bailey PCQuestions a Witness
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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
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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
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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
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Adam Leitman Bailey PCQuestions a Witness
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Condemnation
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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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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
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Adam Leitman Bailey PCNew York Real Estate Attorneys
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Adam Leitman Bailey PCQuestions a Witness
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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
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Adam Leitman Bailey PCQuestions a Witness
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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
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Adversary Demands Property Owner Vacate Area
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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
-
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
-