Overcoming Obstacles to Develop Real Estate: Easements, Covenants and Other Impediments

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Overcoming Obstacles to Develop Real
Estate: Easements, Covenants and Other
Impediments

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Setting The Law Straight On
Terminating Easements

Terminating Easements
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© Adam Leitman Bailey, P.C. 2015
• 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.”
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys

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• 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 license.

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• Easements can be created in
four ways: express grant in
writing, implication from
prior use, implication from
necessity.

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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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• 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.

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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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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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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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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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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357 East Seventy-Sixth St.
Corp. v. Knickerbocker Ice Co.

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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.

Easement
Active Cases

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Using Adverse Possession to Steal
or Defend Ownership of Land

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Adverse Possession Defined: Old Law
To establish adverse possession, the following five
elements must be proved: Possession must be:
1. Hostile and under a claim of right
2. Actual
3. Open and notorious
4. Exclusive
5. Continuous for the required period (10 years)
▫ Belotti v. Bickhardt, 228 N.Y. 296, 302 (N.Y. 1920)
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Walling v. Pryzbylo
Seminole case that prompted the legislature to
amend the adverse possession statute and define a
“claim of right.”

In Walling v. Przybylo, the Wallings and the Przybylos
owned adjoining properties. The Wallings began using a
portion of the Przybylos’ property as their own.
• Bulldozed and deposited fill and topsoil on disputed property
• 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.
• Constructed an underground dog wire fence to enclose their dog and continuously
mowed, graded, raked, planted, and watered the grassy area in dispute.
• Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of
the pipeline.
• 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.
• Since 1992, the post and birdhouse have remained in place.
▫ Walling v. Przybylo, 7 N.Y.3d 228, 230-231 (N.Y. 2006)
◦ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession Changes Make Result Less Certain,
2009 The New York L. J., Feb. 11, 2009 at (2009).
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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 “actual knowledge that another
person is the title owner does not, in and of itself,
defeat a claim of right by an adverse possessor.”
▫ Walling v. Przybylo, 7 N.Y.3d 228 (N.Y. 2006)
◦ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession Changes
Make Result Less Certain, 2009 The New York L. J., Feb. 11, 2009 at
(2009).
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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 § 501
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Adverse Possession Defined: New Law

NY CLS RPAPL § 512
Essentials of adverse possession under written instrument or
judgment
“… 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 notice.
2. 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 occupant.”
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Amendments to Actual Possession Requirement

NY CLS RPAPL § 543
Adverse possession; how affected by acts across a
boundary line
1. … 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. … the acts of lawn mowing or similar maintenance across
the boundary line of an adjoining landowner's property shall
be deemed to be permissive and non-adverse.
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Adverse Possession Defined: The New Law
Amendments to the Actual Possession Requirement
Specific Exceptions

NY CLS RPAPL § 522
Essentials of adverse possession not under written instrument or
judgment
Land is deemed to have been possessed and occupied only:
1. Where there have been acts sufficiently open to put a
reasonably diligent owner on notice.
2. Where it has been protected by a substantial enclosure, except
as provided in subdivision one of section five hundred
forty-three of this article.
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Amendments to Actual Possession Requirement

Claim of Right
The 2008 Amendments went on to specifically
define “Claim of Right” as having “a reasonable
basis for the belief that the property belongs to
the adverse possessor or the property owner as the
case may be.” RPAPL 501(3)
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Claim of Title
Under the old law, knowledge that rightful title belongs
to another did not defeat a claim of right.
Walling v. Przybylo, 7 N.Y.3d 228 (N.Y. 2006)
Claim of Right
NY CLS RPAPL § 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.
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Claim of Title (Old Law) vs.
Claim of Right (New Law)

Actual Possession Under the New Law
“De minimus encroachments”
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 other's superior ownership rights, in
a manner that would give the owner a cause
of action for ejectment.
• RPAPL 501(1)
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The statute went further to limit the kinds of acts which
rise to a “manner that would give the owner a cause of
action for ejectment” by specifically excluding certain
common actions as “de minimus” and “non adverse”
1. “…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. “…the acts of lawn mowing or similar
maintenance across the boundary line of an
adjoining landowner's property shall be deemed
permissive and non-adverse.”
▫ NY CLS RPAPL § 543
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Statute of Limitations for Adverse
Possession
Remains the same under the new law
NY CLS CPLR § 212
Possession necessary to recover real property. An
action to recover real property or its possession
cannot be commenced unless the plaintiff, or his
predecessor in interest, was seized or possessed of the
premises within ten years before the commencement
of the action.
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• To date, there is no decision by the First
Department determining whether or not
the 2008 amendments to RPAPL Article 5
should be applied retroactively to
adverse possession claims allegedly
vested before 2008, but filed on or after
July 7, 2008.
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First Department Cases

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Second Department
Cases

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Second Department Cases
• 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.

Hartman v. Goldman
The First Case Using the New Law

The First Case Using the New Law
• Section 9 of the Amendments states that the new law
“shall take effect immediately, and shall apply to
claims filed on or after such effective date.”
• However, Courts have recognized that where adverse
possession rights have vested prior to the amendments,
the old law should still apply.
• In Hartman v. Goldman, the alleged adverse possession
rights would have vested prior to the enactment of the
amendments.
• However, due to clever lawyering, defendant’s 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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• 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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• 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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Third Department
Cases

Franza v. Olin
73 A.D.3d 44 (N.Y. App. Div. 4th Dep’t 2010)
Fourth Department
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Fourth Department Cases

• However, in accordance with the statutory mandate,
the Court of Appeals has ruled, in Estate of Becker v.
Murtagh, that if a claim was filed before the
amendments took effect and rights were vested by
adverse possession before the amendments were
effective, the old law will apply.
The Court of Appeals did not address the effect the
new amendments would have on cases brought after
the amendments became effective but where
ownership rights are alleged to have vested prior to
July 7, 2008.
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Adverse Possession
Active Cases

Using Encroachment Laws
To Keep Land On Property
You Do Not Own

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You have one year to
commence action to
remove land if not
exceeding six inches.

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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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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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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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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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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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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.

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
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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)
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Conclusion

The End

Overcoming Obstacles to Develop Real Estate: Easements, Covenants and Other Impediments

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