New York Easement Law

An easement is the right to use the land of another for a limited purpose.   Such easements are known as affirmative easements.   Some easements limit how a property owner may use his property.   These are known as negative easements.

Forming Easements in NY

Easements are typically divided into two classifications based upon whether they benefit a particular person or a particular parcel of land.

  1. Easements In Gross – Easements in gross benefit a particular individual or a particular entity. Easements in gross terminate upon the death of the grantee and may not be sold or assigned by him during his lifetime.
  2. Easement Appurtenant  - Easements appurtenant benefit a particular parcel of land.   Easements appurtenant must be in writing, signed by the grantor, and identify the dominant and servient estates.   The dominant estate is the land which benefits from the easement.   The servient estate is the land which is burdened by the easement.   Under New York law, an easement appurtenant may be extinguished by abandonment, conveyance, condemnation, or adverse possession.

Express Easements – An express easement may be created by deed or other written instrument.   When called upon to interpret an express easement, New York courts seek to ascertain the intent of the parties by looking to the circumstances surrounding the execution of the easement agreement.

Easements By Implication From Preexisting Use – To establish an easement by implication from preexisting use, a claimant must prove three elements:

  1. Unity of title followed by a subsequent separation of title;
  2. That prior to the separation of title, the claimed easement had been used for so long and in such an obvious or apparent manner as to demonstrate it was meant to be permanent; and
  3. That the use is necessary for the beneficial use and enjoyment of the property retained.

Easements By Necessity – To prove the existence of an easement by necessity, a claimant must show a severance of the unity of title that gave rise to the the necessity for the easement.   If the need for the easement was not present at the time of the severance of the unity of title, an easement by necessity will not be found.

Easements By Prescription – An easement by prescription may be proven upon a showing that the use of the land over which the easement is claimed had been adverse, open, notorious, continuous, and uninterrupted for at least ten years.

Easement Boundary Disputes

Easement disputes often arise as a result of vague and ambiguous easement agreements.   Easement disputes typically involve the following issues:

  • Abandonment;
  • Termination;
  • Misuse;
  • Interference;
  • Encroachment of Improvements; and
  • Trespass.

Help from a Real Estate Lawyer in New York

If you are involved in an easement dispute, you should contact an experienced real estate attorney as soon as possible.   A real estate attorney will review your case, along with all relevant documents such as contract, deeds, and surveys, and advise you of your legal options.   A real estate attorney may also represent you in settlement negotiations and at trial.

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