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© Adam Leitman Bailey, P.C. 2016
Overcoming Land and Development
Restrictions: Easements, Adverse Possession
and Other Property Obstacles
April 7, 2016
Judicial Title Insurance Agency LLC
Spring CLE

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© Adam Leitman Bailey, P.C. 2016
UNDERSTANDING
EASEMENTs

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CREATION
• Easements can be created in four ways:
▫ Grant,
▫ Implication from prior use,
▫ Implication from necessity, and
▫ Prescription.
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4.
Easements
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• 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 …
protection … against third persons from
interference in such use or enjoyment; (c) is not
subject to the will of the possessor of the land and
(e) is capable of creation by conveyance.”
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New York Real Estate Attorneys

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Easement by Grant

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L 80 P394 Sec 5
1) h.
2) H. Cook, Mary ux.
3) 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.
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• 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.
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New York Real Estate Attorneys

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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”
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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.
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13.
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).
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EASEMENTS BY IMPLICATION FROM PRIOR USE

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Easement of
Necessity
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• Imagine a land owner has a fairly
substantial piece of acreage and
decides to subdivide it into lots
and one of the lots the owner
creates is completely landlocked
inside the other lots.
• Paine v. Chandler, 134 N.Y. 385 (1892).
• Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d 900, 903 (1997).
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• As the owner sells off those lots,
the sale creates an easement of
access on those lots enabling the
owner of the landlocked lot to
access the highway.
• Will v. Gates, 89 N.Y.2d 778, 784, 680 N.E.2d 1197, 1200, 685 N.Y.S.2d
900, 903 (1997).
• Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178, 197 N.Y.S.2d 161 (1960).
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New York Real Estate Attorneys

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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).
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• There are 8 ways to terminate
an easement:
• Abandonment
• Merger
• End of Necessity
• Demolition
• Recording Act
• Condemnation
• Adverse Possession
• Release
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Abandonment
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• 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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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.
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Banach v. Homes Gas Co., 12 A.D.2d 373, 211
N.Y.S.2d 443 (1961)
Application: Defendant laid a natural gas pipeline four
feet under the ground across plaintiff’s lands. Id. at 374, 211
N.Y.S.2d at 444. Id. Plaintiff brought suit against defendant
to remove pipelines on the basis that easement was
abandoned. Id. 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.
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Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178,
197 N.Y.S.2d 161 (1960)
• Issue: Whether there is a potential claim by defendant for the
termination of an easement by abandonment.
• The acts must clearly demonstrate the permanent
relinquishment of all right to the easement. Id. The
“mere use of the easement for a purpose not
authorized, the excessive use or misuse, or the
temporary abandonment thereof, are not of
themselves sufficient to constitute an abandonment.
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New York Real Estate Attorneys

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Gerbig v. Zumpano, 7 N.Y.2d 327, 165 N.E.2d 178,
197 N.Y.S.2d 161 (1960)
• Application: Plaintiffs and defendant were owners of adjacent
residential properties that are separated by a lot called a ‘lane. When
originally divided, the lane was the only possible avenue to a public
street from the 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.
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Merger
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• Under the merger doctrine, an
easement will terminate when
the dominant and servient
estates become vested in one
person.
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Demolition
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• An easement in a building or
land will terminate when that
burdened building or land is
completely destroyed.
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Recording Act
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• A good faith purchaser for
value is not bound by an
easement which is not
properly recorded prior to a
purchase of the encumbered
property.
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• The easement does not terminate
notwithstanding a failure to record
the easement if the good faith
purchaser had actual knowledge and
notice of any facts which would lead
a reasonably prudent purchaser to
make inquiries.
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Abuse
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• Abusing the rights one has under
an easement is not a ground for
extinguishing the easement.
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• The mere use of the easement for a
purpose not authorized, the
excessive use or misuse, or the
temporary abandonment thereof, are
not of themselves sufficient to
constitute an abandonment or any
other ground to extinguish the
easement.
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• That is not to say that the servient
estate owner is without a remedy,
but destruction of the easement is
not that remedy.
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Condemnation
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• A government can create an
easement by way of condemnation
• A governmental agency can also
abolish an easement by
condemning it
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Release
• An easement once granted may be
ended by a release in writing stating
that the owner of the easement gives
away all rights and remedies including
the ability to sue under the easement.
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Adversary Demands Property
Owner Vacate Area

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Adam Leitman Bailey, P.C.
Questions a Witness

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Suggestions For Title
Insurers When Dealing With
Possible Boundary Disputes

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The End