overcoming obstacles to develop real estate: easements, covenants and other impediments

Overcoming Obstacles to Develop Real Estate: Easements, Covenants and

Other Impediments

Setting The Law Straight On Terminating

Easements

Terminating 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 … 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

• 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.

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

• 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.

• There are 8 ways to terminate an easement:• Abandonment • Merger • End of Necessity • Demolition • Recording Act• Condemnation • Adverse Possession• Release

Abandonment

• 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.

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.

Merger

• Under the merger doctrine, an easement will terminate when the dominant and servient estates become vested in one person.

Easement of Necessity

• 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).

• 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).

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.

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.

• 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.

• Abusing the rights one has under an easement is not a ground for extinguishing the easement.

• 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.

• That is not to say that the servient estate owner is without a remedy, but destruction of the easement is not that remedy.

Condemnation

• A government can create an easement by way of condemnation

• A governmental agency can also abolish an easement by condemning it

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

Using Adverse Possession to Steal or Defend Ownership of

Adverse Possession Defined: Old LawTo establish adverse possession, the following five elements must be proved: Possession must be:

1. Hostile and under a claim of right2. Actual3. Open and notorious4. Exclusive5. Continuous for the required period (10

years) ▫ Belotti v. Bickhardt, 228 N.Y. 296, 302 (N.Y. 1920)

Walling v. PryzbyloSeminole 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).

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).

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

Adverse Possession Defined: New Law

NY CLS RPAPL § 512Essentials 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.”

Adverse Possession Defined: New LawAmendments 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.

Adverse Possession Defined: The New LawAmendments to the Actual Possession Requirement

Specific Exceptions

NY CLS RPAPL § 522Essentials 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.

Adverse Possession Defined: New LawAmendments to Actual Possession Requirement

Claim of RightThe 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)

Claim of TitleUnder 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 RightNY 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.

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)© Adam Leitman Bailey, P.C. 2015

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

Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR § 212Possession 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.

• 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.

Adam Leitman Bailey, P.C.New York Real Estate AttorneysFirst Department Cases

Second Department

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. GoldmanThe 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.

Second Department Cases• 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.

Second Department Cases

• 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.

Third Department Cases

Franza v. Olin73 A.D.3d 44 (N.Y. App. Div. 4th Dep’t 2010)

Fourth Department

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.

Adverse Possession

Active Cases

Using Encroachment Laws To Keep Land On Property You Do Not

You have one year to commence action to remove land if not

exceeding six inches.

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.

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.

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.

Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25, 1899.

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.

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

Light and AirNew 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)

Conclusion

The End

overcoming obstacles to develop real estate: easements, covenants and other impediments

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