understanding easement litigation

1

© Adam Leitman Bailey, P.C. 2015

2

L 80 P394 Sec 5

1) Henry H. Cook, Mary ux. 2) Oliver H. Payne

BAP Ely – 5th Av. 32’ 2” S-79th Street≈S 70’≈E 115’≈N 102’ 2”≈W 15’≈S 32’≈W 100’ 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.


3


4


5


6

EASEMENTS• “An easement is an interest in land in the possession

of another which(a) entitles the owner of such interest to a limited use or

enjoyment of the land in which the interest exists; (b) entitles him to protection as against third persons

from interference in such use or enjoyment; (c) is not subject to the will of the possessor of the land; (d) is not a normal incident of the possession of any land

possessed by the owner of the interest, and (e) is capable of creation by conveyance.”▫ (N.Y.R.P.L. §450).


7

CREATION

•Easements can be created in four ways: ▫Grant,▫Implication from prior use, ▫Implication from necessity, and▫Prescription.


8

EASEMENTS BY EXPRESS GRANT

To create an easement by express grant there must be a writing containing plain

and direct language evincing the grantor’s intent to create a right in the nature of an easement rather than a revocable license.

Willow Tex, Inc. v. Dimacopoulos, 68 N.Y.2d 963, 965, 503 N.E.2d 99, 100, 510 N.Y.S.2d

543, 544 (1986).


9

Where the permanence of the restriction to be imposed on the burdened estate is ambiguous, the right of use should be

deemed a license, revocable at grantor’s will, rather than an easement. Willow Tex, Inc. v. Dimacopoulos, 68 N.Y.2d 963, 965, 503 N.E.2d 99, 100, 510 N.Y.S.2d 543, 544

(1986).

Ambiguity = License


10

Light and Air

New York does not recognize an easement for light and air, except where created by

express agreement. Chatsworth Realty 344 LLC v. Hudson Waterfront Co. A, LLC, 309

A.D.2d 567, 568, 765 N.Y.S.2d 39, 49 (2003)


11

Miller v. Edmore Homes Corp., 285 A.D. 837, 137 N.Y.S.2d 324 (1955)

Plaintiffs were owners of thirteen in a row of fourteen attached family dwellings. A semidetached garage was attached to the rear of their dwellings on each lot. A shed was also attached to the rear of each dwelling. Defendant was the owner of the land

to the rear of plaintiffs’ lots. Defendant built a retaining wall along plaintiffs’ rear lot line.

Plaintiffs sued defendant to remove retaining wall on the basis that plaintiffs had an implied easement

to use a strip of the land to the rear of their dwellings as part of a driveway between the

garages and the street.© Adam Leitman Bailey, P.C. 2015

12

Miller v. Edmore Homes Corp., 285 A.D. 837, 137 N.Y.S.2d 324 (1955)

• Each deed of conveyance expressly granted an easement of right of way as contained in a certain

declaration, which had been executed and recorded in 1931. The declaration expressly established the

easement as being over the strip about ten feet wide running along respondents’ rear lot line but entirely

within their properties and no farther. Thus, the language of the declaration was incorporated into

the grants and the language of the grants is unambiguous and certain.

• No necessity found because garages can be moved for cars to be able to drive through.


13

EASEMENTS BY IMPLICATION FROM PRIOR USE

•There 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 land’s use and enjoyment.


14

The “necessity” required for an implied easement based upon preexisting use is only “reasonable

necessity,” in contrast to absolute necessity required to establish an implied easement by

necessity. Four S Realty Co., v. Dynko, 210 A.D. 2d 622, 623, 619 N.Y.S.2d 855, 856 (1994).


EASEMENTS BY IMPLICATION FROM PRIOR USE

15

Paine v. Chandler, 134 N.Y. 385, 32 N.E. 18 (1892)

Plaintiff, owner of two adjoining farms, conveyed one of them to defendant. Defendant’s property had a spring on its farm that provided water to

plaintiff’s property. However, defendant engaged in acts subsequent to conveyance from plaintiff

that deprived plaintiff of the spring’s use. Plaintiff was left with no other convenient and

adequate supply of water. The uninterrupted flow and use of the water through the pipes from the spring on the defendant’s farm was essential to

plaintiff’s enjoyment of the estate.© Adam Leitman Bailey, P.C. 2015

16

Paine v. Chandler

•After defendants’ acts, plaintiff attempted to build a well on his own property but it failed to produce sufficient water. Id. Thus, he was forced to drive long distances to get water. Further, the loss of water substantially devalued plaintiff’s land. Id.

•Conclusion: Plaintiff acquired implied easement because water was reasonably necessitated in order to sustain his stock and maintain the property value.


17

EASEMENTS BY IMPLICATION FROM NECESSITY

• An easement by necessity arises when a landowner who owns two parcels of land sells one of them and leaves the other parcel without any access to public roads. Mobile Motivations, Inc. v. Lenches, 26 A.D.3d 568, 571, 809 N.Y.S.2d 253, 256 (2006).

• There are three requirements to create an easement by necessity.▫First, there must have been a unity of ownership prior

to the split of land.▫Second, the use must be strictly necessary and not a

mere convenience.▫Third, the necessity must have existed when the parcel

was split into two estates.© Adam Leitman Bailey, P.C. 2015

18

Easement by necessity involves a right to gain access to a land. Minogue v. Monette,

158 A.D.2d 843, 551 N.Y.S.2d 427.


19

Minogue v. Monette, 158 A.D.2d 843, 551 N.Y.S.2d 427 (1990)

• Plaintiff and defendant were brother and sister. Each inherited a home from their father’s will. The homes were adjacent to one another. A driveway ran between the two homes for over 25 years. The driveway was located on the plaintiff’s brother’s land where his house was. The plaintiff’s father accessed the driveway as well in order to access his garage, which was located on plaintiff’s property. Plaintiff must use driveway through defendant’s property in order to access the garage on her property. Plaintiff commenced this action to declare that she has an easement of access for ingress and egress over the driveway. Here, the two lots of plaintiff and defendant were unified and then severed upon their father’s death. Plaintiff has an easement by necessity for the beneficial use of accessing the garage on her property.

• Conclusion: An implied easement by necessity was created in favor of the plaintiff.


20

EASEMENTS BY PRESCRIPTION• 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 A.D.2d 690, 691, 878 N.Y.S.2d 193 (2009); Hammond v. Zehner, 21 N.Y. 118 (1860) ▫The prescriptive period is 10 years. 315 Main

Street Poughkeepsie, LLC v. WA 319 Main, LLC, 62 A.D.2d 690, 691, 878 N.Y.S.2d 193, 194 (2009) (citing N.Y.R.P.A.P.L. §501).


21

315 Main Street Poughkeepsie, LLC v. WA 319 Main, LLC, 62 A.D.2d 690, 878 N.Y.S.2d

193 (2009) •Application: Plaintiff used defendant’s

parking lot for the purpose of gaining access to his own parking lot. Defendant permitted plaintiff to continue the use as a neighborly accommodation. Plaintiff’s use of defendant’s parking lot was open, notorious, continuous, and undisputed. However, since defendant permitted plaintiff’s use of the purported easement, the use was not hostile. Thus, plaintiff did not have an easement by prescription. © Adam Leitman Bailey, P.C. 2015

22

• An easement appurtenant requires three elements. ▫Conveyed in writing▫Subscribed by the person creating the easement▫And burdened by the servient estate for the benefit

of the dominant estate.▫Strnad v. Brudnicki, 200 A.D.2d 735, 736, 606

N.Y.S.2d 913, 914 (1994), Webster v. Ragona, 7 A.D.3d 850, 776 N.Y.S.2d 347 (2004)

• When deeding a property, an appurtenance gives a right of way so that the rights given to that property can be used to property owners’ land’s benefit and enjoyment. Fischer v. Anger, 283 A.D.2d 865, 868, 725 N.Y.S.2d 437, 449 (2001).


APPURTENANT EASEMENTS

23

APPURTENANT EASEMENTS• All subsequent conveyances must have the easement

allowing the person gaining the easement to use the owner’s land. Will v. Gates, 89 N.Y.2d 778, 680 N.E.2d 1197, 685 N.Y.S.2d 900 (1997)

• The beneficiary of the easement may transfer it to another party. The easement appurtenant may be inherited, succeeded, or sold to another person. Will v. Gates, 89 N.Y.2d 778, 680 N.E.2d 1197, 685 N.Y.S.2d 900 (1997).

• An easement appurtenant is not personal to one landowner but succeeds to future landowners pursuant to writings in the original deed that carries on into future deeds.

• If the property is subdivided into separate plots, the easement may still stand.


24

Easement Appurtenant

“TOGETHER, 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 forever”


25


26

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. Id.


Strnad v. Brudnicki, 200 A.D.2d 735, 606 N.Y.S.2d 913 (1994)

27

Strnad v. Brudnicki, 200 A.D.2d 735, 606 N.Y.S.2d 913 (1994)

Plaintiffs were owners of subdivided lots on dominant estate. Defendants owned the burdened estate (servient estate). All of plaintiff’s deeds either contained a specific reference to an easement of way or contained appurtenance clauses. Defendant’s deed contained specific reference to easement and indicated that the property was subject to the easement. After years of use and notice of easement, defendants constructed a fence that blocked access to the easement. Plaintiffs sued to enjoin defendants obstructing easement’s use. The original conveyance of the property created a written and subscribed easement for the benefit of the dominant estate (plaintiff’s estate) burdening the servient estate (defendant’s estate). Thus, the easement was appurtenant and passed to all subsequent purchasers of the dominant estate through the general appurtenant clauses. Each and every deed in plaintiff’s chain of title since the first conveyance contained a general appurtenance clause. Thus, plaintiffs have a valid property right in the easement of way.


28

IN GROSS EASEMENTS• An easement in gross benefits a landowner personally

and not in his capacity as a landowner. Loch Sheldrake Associates v. Evans, 306 N.Y. 297, 304 118 N.E.2d 444, 447 (1954); Niceforo v. Haeussler, 276 A.D.2d 949, 950, 714 N.Y.S.2d 788, 790 (2000).

• Easement in gross is granted to someone personally that may not own any land to use another parcel of land, otherwise known as the servient estate.

• An easement in gross is a mere personal, nonassignable, noninheritable privilege or license.

• An easement in gross’s benefit is in person. The person can leave a land and still carry the benefit of the easement with him.


29

•An example of an easement in gross is the right of someone to use a pathway over another’s land to access a beach. Bova v. Vinciguerra, 184 A.D.2d 934, 935, 585 N.Y.S.2d 125, 126 (1992).

•The owner of the easement in gross does not need to own or possess land.

•An easement in gross may be assignable or inheritable.

•An easement in gross can be created by the grant of an exclusive right to place signs on a wall or a fence.


30

Bova v. Vinciguerra, 184 A.D.2d 934, 585 N.Y.S.2d 125 (1992).

Plaintiffs Deuel, Ecock, Lefkovitz and Pariseau, own parcels of real property. All properties are in close proximity to Saratoga Lake. Whenever plaintiffs wanted to gain access to or depart from the lake, they would walk across path on defendants’ land. They did this for over 25 years. Plaintiff Deuel did not own real property during the time she used the path on defendant’s property.. Defendants erected a fence on the path that prevented plaintiffs from gaining access to the lake.. Plaintiffs commenced action against defendants asserting they had a prescriptive easement in the path. Deuel used path on defendant’s property for 40 years.. She did not own any property during that time period. Id. Thus, she was entitled to an easement in gross because she was personally benefitted by the use of the pathway. Id.


31

Top Hat Car Wash Co., Inc. v. McDonly, 277 A.D.2d 310, 716 N.Y.S.2d 83 (2000)

Plaintiffs were owners of store that sold kayaks and canoes. Plaintiffs’ customers tested the kayaks and canoes on the Peconic Bay. Customers gained access to the bay via Peconic River that was on defendant’s property. Defendants obstructed plaintiff’s use by blocking the area with large branches and a “No Trespassing” sign. The Court found that plaintiffs had a (prescriptive) easement in gross over this certain portion of defendant’s real property. The use personally benefitted the plaintiff’s business and not the plaintiff’s real property.


32

TERMINATION OF EASEMENTS

•There are ways to terminate an easement.1. Merger2. Release3. Abandonment4. Adverse Possession5. End of Necessity6. Condemnation7. Demolition8. Recording Act


33

• An easement once granted may be ended by merger. (Andrews v. Cohen, 221 N.Y. 148, 153 116 N.E. 862, 863 (1917)

• Under the merger doctrine, an easement will terminate when the dominant and servient estates become vested in one person. Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d 900, 903 (1997).

• There must be a complete unity of the dominant and servient estates. Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d 900, 903 (1997)

• When a portion of the servient or dominant estate is acquired, there is no complete unity of title. Therefore the easement still stands. Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d 900, 903 (1997)


MERGER

34

Will v. Gates, 89 N.Y.2d 778, 680 N.E.2d 1197, 685 N.Y.S.2d 900 (1997)

Garrison owned the entire plot of land abutting a right-of-way, which he created when he subdivided his property. Id. at 781, 680 N.E.2d at 1198, 685 N.Y.S.2d at 900. The right of way consists of a northern spur, a southern spur, and a north-south spur. Id. At issue was the north-south spur. Id. The right of way runs along western edge of defendant, Gate’s, property. The deed to Gate’s residential lot expressly conferred a right-of-way in the northern and southern spurs but not over the north-south spur. Id. Gates also acquired from Garrison a land parcel situated west of the north-south spur of the easement. Id. at 782, 680 N.E.2d at 1198, 685 N.Y.S.2d at 901. The deed contained the identical language to plaintiff’s deed granting the right of way in common with others. Id. Gates sold the southern portion of their lot to Brower. Id. Plaintiffs sought a declaratory judgment action seeking access to a right-of-way over defendant’s property. Plaintiffs alleged that any easement over the southern spur extended through their property had been abandoned. Defendants counterclaimed that merger extinguished plaintiff’s interest in the north-south spur when Gates acquired the westerly parcel. Id. There was no proof that all of the dominant and servient estates had vested and unified under one owner. Id. at 785, 680 N.E.2d at 1200, 685 N.Y.S.2d at 903. Thus, the easement had not terminated.


35

RELEASE

An easement once granted may be ended by release in writing that the owner of the

easement releases the easement. Andrews v. Cohen, 221 N.Y. 148, 153 116

N.E. 862, 863 (1917)


36

ABANDONMENT• Easement by grant, express or implied, can by abandonment. Gerbig v.

Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).• In order to prove abandonment it is necessary to establish both an intention

to abandon and also some overt act or failure to act, which carries the implication that the owner neither claims nor retains any interest in the easement. Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).

• Acts evincing an intention to abandon must be unequivocal. Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).

• The acts must clearly demonstrate the permanent relinquishment of all right to the easement. Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).

• 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.” Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960)

• Nonuse alone, even for a long period of time, is not enough to constitute abandonment. Id. at 375, 211 N.Y.S.2d at 445.


37

Banach v. Homes Gas Co., 12 A.D.2d 373, 211 N.Y.S.2d 443 (1961)

• Issue: Whether the defendant’s easement to lay and maintain a pipeline over plaintiff’s lands terminated due to abandonment.

• Rule: Nonuse alone, even for a long period of time, is not enough to constitute abandonment. Id. at 375, 211 N.Y.S.2d at 445.

• Application: Defendant laid a natural gas pipeline four feet under the ground across plaintiff’s lands. Id. at 374, 211 N.Y.S.2d at 444. Defendant justified his act on the basis that he had a right pursuant to an easement to lay and maintain such a pipe. Id. Plaintiff brought suit against defendant to remove pipelines on the basis that easement was abandoned. Id. Plaintiff’s nonuse of land from 1932 to 1957, which was when the defendant constructed the pipeline over plaintiff’s 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.


38

Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960)

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

• Easement by grant, express or implied, can only be extinguished by abandonment, conveyance, condemnation, or adverse possession. Id. at 330, 680 N.E.2d at 180, 187 N.Y.S.2d at 163. In order to prove abandonment it is necessary to establish both an intention to abandon and also some overt act or failure to act, which carries the implication that the owner neither claims nor retains any interest in the easement. Id. at 331, 680 N.E.2d at 181, 187 N.Y.S.2d at 164. Acts evincing an intention to abandon must be unequivocal. Id. The acts must clearly demonstrate the permanent relinquishment of all right to the easement. Id. The “mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment.” Id. at 331, 680 N.E.2d at 181, 187 N.Y.S.2d at 164 (citing Roby v. New York Cent. & H.R.R. Co., 142 N.Y. 176, 181, 36 N.E. 1053, 1055).

• Application: Plaintiffs and defendant were owners of adjacent residential properties that are separated by a lot called a ‘lane. When originally divided, the lane was the only possible avenue to a public street from the defendant’s property.. Defendant constructed a patio and built fences and enclosures on this land. Plaintiff commenced action against defendant to remove these encumbrances. The lower court entered judgment in favor of the plaintiff. Defendant appealed. Court of Appeals held that encroachments may either be found to show a present intention not to use the easements so as to unequivocally demonstrate an abandonment or a deferred use, which would be consistent with a reliance upon the continued existence of a property right of way.

• Conclusion: Yes. Defendant might be able to prove that the easement was abandoned.


39

450 West 14th St. Corp. v. 40-56 Tenth Ave., L.L.C., 724 N.Y.S.2d 273 (2001)

• Issue: A conditional easement will terminate when it is clear that its condition has been violated. Id. at 275.

• Rule: With respect to a conditional easement, it is deemed lost when it is clear that the condition has been violated. Id. at 275.

• Application: Gingold operated a meat packing business and purchased five parcels of property. Id. at 274. The adjacent property owned by plaintiff, State Realty, entered into an agreement with Gingold that granted an exclusive use easement over a portion of its property to Gingold. Id. Gingold then sold the parcels to defendant. Id. at 275. Plaintiff commenced suit against defendant for failing to maintain the Easement Area. Id. Defendant was in the process of negotiating a lease with a food vendor. Id. Defendant said that the easement terminated. Id. The provision of the Easement Agreement between plaintiff and defendant stated that the easement will exist “for so long as the business of dealing in meats, meat products or other food products is carried on in the De Lamatar Square premises” (defendant’s premises). Id. at 274. Since the limitation in the agreement only related to the nature of the business on the premises and not the character of the owner of the property, the mere fact that the property was purchased by defendant Realty Company did not terminate the easement. Id.

• Conclusion: No. The easement’s condition has not been violated solely because of the mere fact that the defendant realty company purchased the property.


40

Doctrine of Changed Circumstances

• Extinguishment of non-substantial restrictions on the use of land▫ No restriction on the use of land created … shall be

enforced … nor shall such restriction be declared or determined to be enforceable, if, at the time the enforceability of the restriction is brought in question, it appears that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason.

▫ NY CLS RPAPL § 1951

41

CONDEMNATION

Easement by grant, express or implied, can only be extinguished by condemnation. Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960); Strnad v. Brudnicki, 200 A.D.2d 735, 606 N.Y.S.2d 913 (1994).


42

DEMOLITION

An easement in a building or land will terminate when that burdened building or land is completely destroyed. 357 East Seventy-Sixth St. Corp. v. Knickerbocker Ice Co., 263 N.Y. 63, 188 N.E. 158 (1933).


43

357 East Seventy-Sixth St. Corp. v. Knickerbocker Ice Co., 263 N.Y. 63, 188 N.E. 158 (1933)

Parties were adjacent property owners. Id. at 65, 188 N.E. at 159. Plaintiff demolished building on its property except for the party wall. Plaintiff intended to use party wall for support of a garage. . Before plaintiff built the garage, defendant demolished its building and the entire party wall. Consequently, plaintiff built an independent wall on its own premises, even though the party wall was suitable for continued use. Court found that when plaintiff demolished its building, it put an end to the necessity of support on its side of the wall. Id. at 67, 188 N.E. at 159-60. Defendant then put a definitive end to the easement when it demolished its entire building and put an end to the necessity of the support on its side of the wall. Id. at 67, 188 N.E. at 160.


44

• A “grantor may effectively extinguish or terminate [an encumbrance] when … the grantor conveys retained servient land to a bona fide purchaser who takes title without actual or constructive notice of the covenant because the grantor and dominant owner failed to record the covenant in the servient land’s chain of title. Simone v. Heidelberg, 9 N.Y.3d 177, 877 N.E.2d 1288, 847 N.Y.S.2d 511 (2007)

• An encumbrance must be “record[ed] in the servient chain [of title]…so as to impose notice on subsequent purchasers of the servient land.” Simone v. Heidelberg, 9 N.Y.3d 177, 877 N.E.2d 1288, 847 N.Y.S.2d 511 (2007)

RECORDING ACT


45

•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. Webster v. Ragona, 704 A.D.3d 850, 776 N.Y.S.2d 347 (2004)

•The easement does not terminate even if there was 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. Webster v. Ragona, 704 A.D.3d 850, 776 N.Y.S.2d 347 (2004)


46

Simone v. Heidelberg, 9 N.Y.3d 177, 877 N.E.2d 1288, 847 N.Y.S.2d 511 (2007).

The easement was extinguished by merger when the subject properties came under

common ownership.

When both the dominant and servient properties are owned by the same person,

an easement cannot exist.


47

Webster v. Ragona, 7 A.D.3d 850 (N.Y. App. Div. 3d Dep't 2004)

Plaintiff and defendant were owners of two adjacent commercial properties. The parties’ predecessor in title, Peeters, owned and leased the commercial properties. Tenants of the two parcels used a common driveway for ingress and egress to parking lot located behind the buildings. Defendant purchased one of the lots. Defendant’s contract of sale expressly conditioned transfer of title on the granting of any necessary permanent easement for parking in the rear of the premises. Peeters and defendant executed document known as “Ingress and Egress Easement.” Which expressly stated that the adjacent properties shared a common driveway to the parking lot at the rear of the buildings. When plaintiff’s purchased their lot from Peeters, the warranty deed mentioned no easement. However, plaintiff had knowledge of the easement because of a letter sent by plaintiff to defendant regarding compliance with terms of the easement agreement. The easement agreement in this case was not recorded prior to the time that the plaintiffs took title to their property. However, the Court found that the plaintiffs had notice of the fact as told to them by the predecessor in title that the defendant had a right-of-way over the driveway. Thus, the easement was not terminated by failure to record the easement.


48

Statute of Limitations for Easement Issues

• CPLR 212- 10-year statute of limitation for Easements by Prescription

• RPAPL 511- 10-year statute of limitations for Adverse Possession

• CPLR 213(1)- 6-year statute of limitations to remove an obstruction, which interferes with an affirmative easement

• CPLR 214- 3-year statute of limitation for injury to a property

• RPAPL 2001- 2-year statute of limitation for a negative easement


49

• To recover damages for breach of contract or agreement is 2 years from completion of structure.

•Replacement, enlargement or alteration made constructing- 2 years from alteration

Statute of Limitations for Easement Issues


THE END


understanding easement litigation

Law