Understanding Easement Litigation

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© Adam Leitman Bailey, P.C. 2015

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.
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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).
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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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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).
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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).
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Ambiguity = License

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)
10

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.
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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.
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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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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

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.
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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.
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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.
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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.
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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.
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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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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.
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• 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).
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APPURTENANT EASEMENTS

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.
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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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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.
26
Strnad v. Brudnicki, 200 A.D.2d 735, 606
N.Y.S.2d 913 (1994)

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.
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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.
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• 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.
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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.
30

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.
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TERMINATION OF EASEMENTS
• There are ways to terminate an easement.
1. Merger
2. Release
3. Abandonment
4. Adverse Possession
5. End of Necessity
6. Condemnation
7. Demolition
8. Recording Act
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• 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)
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MERGER

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.
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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)
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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.
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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.
• 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.
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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.
• 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.
38

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.
39

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
40

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).
41

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).
42

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.
43

• 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)
44
RECORDING ACT

• 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)
45

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.
46

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.
47

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
48

• 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
49
Statute of Limitations for
Easement Issues

THE END

Understanding Easement Litigation

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