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© Adam Leitman Bailey, P.C. 2016
Overcoming Land and Development
Restrictions: Easements, Adverse Possession
and Other P...
2
© Adam Leitman Bailey, P.C. 2016
UNDERSTANDING
EASEMENTs
CREATION
• Easements can be created in four ways:
▫ Grant,
▫ Implication from prior use,
▫ Implication from necessity, and...
Easements
4
© Adam Leitman Bailey, P.C. 2015
• An easement is “an interest in land in the
possession of another which (a) ...
5
© Adam Leitman Bailey, P.C. 2015
Easement by Grant
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© Adam Leitman Bailey, P.C. 2015
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© Adam Leitman Bailey, P.C. 2015
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...
9
© Adam Leitman Bailey, P.C. 2015
• When the dominant estate is
transferred, the easement passes to
the subsequent owner ...
Easement Appurtenant
“TOGETHER, with all right title and interest, if
any, of the party of the first part in and to any
st...
11
© Adam Leitman Bailey, P.C. 2015
EASEMENTS BY IMPLICATION FROM PRIOR USE
• There are four requirements needed to create an
easement by prior use.
▫ First, ...
The “necessity” required for an implied easement based
upon preexisting use is only “reasonable necessity,” in
contrast to...
14
© Adam Leitman Bailey, P.C. 2015
Easement of
Necessity
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys
15
• Imagine a land owner has a fairly
substantial piece of acreage and
decides to subdivide it into lots
and one of the l...
16
• As the owner sells off those lots,
the sale creates an easement of
access on those lots enabling the
owner of the lan...
EASEMENTS BY PRESCRIPTION
• An easement by prescription is generally
demonstrated by proof of the adverse, open and
notori...
18
• There are 8 ways to terminate
an easement:
• Abandonment
• Merger
• End of Necessity
• Demolition
• Recording Act
• C...
19
© Adam Leitman Bailey, P.C. 2015
Abandonment
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys
20
• In order to prove abandonment, it is
necessary to establish not only an intention
by the dominant estate holder to ab...
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 maint...
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
fe...
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 de...
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 owne...
25
© Adam Leitman Bailey, P.C. 2015
Merger
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys
26
• Under the merger doctrine, an
easement will terminate when
the dominant and servient
estates become vested in one
per...
27
© Adam Leitman Bailey, P.C. 2015
Demolition
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys
28
• An easement in a building or
land will terminate when that
burdened building or land is
completely destroyed.
© Adam ...
29
© Adam Leitman Bailey, P.C. 2015
Recording Act
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys
30
• A good faith purchaser for
value is not bound by an
easement which is not
properly recorded prior to a
purchase of th...
31
• The easement does not terminate
notwithstanding a failure to record
the easement if the good faith
purchaser had actu...
32
Abuse
© Adam Leitman Bailey, P.C. 2015
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys
33
• Abusing the rights one has under
an easement is not a ground for
extinguishing the easement.
© Adam Leitman Bailey, P...
34
• The mere use of the easement for a
purpose not authorized, the
excessive use or misuse, or the
temporary abandonment ...
35
• That is not to say that the servient
estate owner is without a remedy,
but destruction of the easement is
not that re...
36
Condemnation
© Adam Leitman Bailey, P.C. 2015
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys
37
• A government can create an
easement by way of condemnation
• A governmental agency can also
abolish an easement by
co...
38
Release
• An easement once granted may be
ended by a release in writing stating
that the owner of the easement gives
aw...
39
© Adam Leitman Bailey, P.C. 2015
Adversary Demands Property
Owner Vacate Area
40
© Adam Leitman Bailey, P.C. 2015
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys
41
© Adam Leitman Bailey, P.C. 2015
42
© Adam Leitman Bailey, P.C. 2015
43
© Adam Leitman Bailey, P.C. 2015
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys
44
© Adam Leitman Bailey, P.C. 2015
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys
45
© Adam Leitman Bailey, P.C. 2015
Adam Leitman Bailey, P.C.
New York Real Estate Attorneys
46
© Adam Leitman Bailey, P.C. 2015
47
© Adam Leitman Bailey, P.C. 2015
48
© Adam Leitman Bailey, P.C. 2015
Adam Leitman Bailey, P.C.
Questions a Witness
49
© Adam Leitman Bailey, P.C. 2016
Suggestions For Title
Insurers When Dealing With
Possible Boundary Disputes
© Adam Leitman Bailey, P.C. 2015
The End
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Overcoming Land and Development Restrictions: Easements, Adverse Possession and Other Property Obstacles Part II

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Overcoming Land and Development Restrictions: Easements, Adverse Possession and Other Property Obstacles Part II

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Overcoming Land and Development Restrictions: Easements, Adverse Possession and Other Property Obstacles Part II

  1. 1. 1 © 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
  2. 2. 2 © Adam Leitman Bailey, P.C. 2016 UNDERSTANDING EASEMENTs
  3. 3. CREATION • Easements can be created in four ways: ▫ Grant, ▫ Implication from prior use, ▫ Implication from necessity, and ▫ Prescription. 3 © Adam Leitman Bailey, P.C. 2015
  4. 4. Easements 4 © 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
  5. 5. 5 © Adam Leitman Bailey, P.C. 2015 Easement by Grant
  6. 6. 6 © Adam Leitman Bailey, P.C. 2015
  7. 7. 7 © Adam Leitman Bailey, P.C. 2015
  8. 8. 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. 8 © Adam Leitman Bailey, P.C. 2015
  9. 9. 9 © Adam Leitman Bailey, P.C. 2015 • 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, P.C. New York Real Estate Attorneys
  10. 10. 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” 10 © Adam Leitman Bailey, P.C. 2015
  11. 11. 11 © Adam Leitman Bailey, P.C. 2015
  12. 12. 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. 12 © Adam Leitman Bailey, P.C. 2015
  13. 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). 13 © Adam Leitman Bailey, P.C. 2015 EASEMENTS BY IMPLICATION FROM PRIOR USE
  14. 14. 14 © Adam Leitman Bailey, P.C. 2015 Easement of Necessity Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  15. 15. 15 • 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). © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  16. 16. 16 • 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). © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  17. 17. 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). 17 © Adam Leitman Bailey, P.C. 2015
  18. 18. 18 • There are 8 ways to terminate an easement: • Abandonment • Merger • End of Necessity • Demolition • Recording Act • Condemnation • Adverse Possession • Release © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  19. 19. 19 © Adam Leitman Bailey, P.C. 2015 Abandonment Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  20. 20. 20 • 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. © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  21. 21. 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. 21 © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  22. 22. 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. 22 © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  23. 23. 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. 23 © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  24. 24. 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. 24 © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  25. 25. 25 © Adam Leitman Bailey, P.C. 2015 Merger Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  26. 26. 26 • Under the merger doctrine, an easement will terminate when the dominant and servient estates become vested in one person. © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  27. 27. 27 © Adam Leitman Bailey, P.C. 2015 Demolition Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  28. 28. 28 • An easement in a building or land will terminate when that burdened building or land is completely destroyed. © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  29. 29. 29 © Adam Leitman Bailey, P.C. 2015 Recording Act Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  30. 30. 30 • 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. © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  31. 31. 31 • 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. © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  32. 32. 32 Abuse © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  33. 33. 33 • Abusing the rights one has under an easement is not a ground for extinguishing the easement. © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  34. 34. 34 • 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. © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  35. 35. 35 • That is not to say that the servient estate owner is without a remedy, but destruction of the easement is not that remedy. © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  36. 36. 36 Condemnation © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  37. 37. 37 • A government can create an easement by way of condemnation • A governmental agency can also abolish an easement by condemning it © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  38. 38. 38 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. © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  39. 39. 39 © Adam Leitman Bailey, P.C. 2015 Adversary Demands Property Owner Vacate Area
  40. 40. 40 © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  41. 41. 41 © Adam Leitman Bailey, P.C. 2015
  42. 42. 42 © Adam Leitman Bailey, P.C. 2015
  43. 43. 43 © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  44. 44. 44 © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  45. 45. 45 © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. New York Real Estate Attorneys
  46. 46. 46 © Adam Leitman Bailey, P.C. 2015
  47. 47. 47 © Adam Leitman Bailey, P.C. 2015
  48. 48. 48 © Adam Leitman Bailey, P.C. 2015 Adam Leitman Bailey, P.C. Questions a Witness
  49. 49. 49 © Adam Leitman Bailey, P.C. 2016 Suggestions For Title Insurers When Dealing With Possible Boundary Disputes
  50. 50. © Adam Leitman Bailey, P.C. 2015 The End

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