Easements

Easements and shared driveways or private roads are a frequent source of neighbor disagreements on the East End. Because the East End was — and, to a degree, still is — essentially rural, until relatively recently there was often little or no planning when building lots were created. As a result, many lots were created with shared access points or without any direct frontage on public roads. While the issue of access may have not been critical when properties were used for farming or as occasional “wood lots” (areas where lumber was harvested for fuel, which his how much of the land north of Montauk Highway was used), today major problems can develop between neighbors regarding easements.

What is an easement?

An easement is a right to use land owned by someone else. Many easements encompass the right to drive cars over another’s land; other easements are for pedestrian access only. Some easements lead to public roads; others may lead to the ocean, bay, or other bodies of water. Scenic and conservation easements are another breed of easement, usually given in favor of a municipality or a land trust for the purpose of preserving land from development.

Easement disputes can threaten the market value of properties and interfere with an owner’s right to peaceful enjoyment of their property. Having handled many easement cases over the years, I have consistently found them to be among the most emotional of property disputes. Maybe your neighbor is blocking your driveway with their vehicles. Or taking liberties to which they are not entitled and driving all over your lawn. These kinds of problems can take a major toll on your quality of life. I understand how important it is to resolve these disputes efficiently and effectively.

Easements are an intellectually demanding area of legal practice.
Your attorney must be savvy enough to understand the subtle differences between the numerous types of easements. There are express easements, implied easements, easements by grant, easements of necessity, and easements by prescription, and each of them has a unique body of law that governs. The last category — easements by prescription — are among the most technical and complex.

What is a prescriptive easement?

A prescriptive easement is a right to use another’s property which is established by usage for a period of at least ten years. It is closely related to the doctrine of adverse possession discussed here. Like adverse possession, the law of prescriptive easements derives originally from Medieval English law, but it is still very much alive today in the Hamptons and on the East End of Long Island. The party who is trying to establish the existence of a prescriptive easement must meet a high evidentiary bar, by proving that the use was:

• hostile and under a claim of right;
• actual;
• open and notorious;
• exclusive; and
• continuous.

How do you win an easement case?

To resolve an easement dispute successfully, your attorney must understand the entire title history of the properties involved (which usually requires tracing the title back to a “common grantor,” sometimes hundreds of years in the past), as well as any pertinent factual information that can be gleaned from surveys, permit files, aerial photography and other sources. Your attorney must also be familiar with all of the nuances and complexity of New York law that apply to the many different types of easements. All of this legal and factual information must be presented to the Court in a clear and effective manner.

Like all “equitable”* cases, easement cases often reward promptness and vigilance. Not only is the calculation of the statutory ten-year time limit on prescriptive easements critical, parties who delay excessively in asserting their rights in court may risk a court ruling against them, under an ancient doctrine known as “laches.”

I have handled dozens of cases involving easements, shared driveways, private roads, prescriptive easements and conservation easements. They are a core area of my practice and if you find yourself involved in one of these troublesome and unpleasant disputes, I urge you to contact me quickly to determine whether I can use my experience in and understanding of the law of easements to help you achieve the best resolution of the problem.

Reported cases in this practice area:

J.C. Tarr, Q.P.R.T. v. Delsener, 19 A.D.3d 548 (2d Dep’t 2005); aff’d in part, mod. in part 70 A.D.3d 774 (2d Dep’t 2010) (won partial summary judgment in easement dispute involving property in East Hampton Estate Section; affirmed with modifications on appeal).

Case studies in this practice area:

In 2015, I represented the owner of property in Bridgehampton over which a neighbor claimed a prescriptive easement, arguing that they and their predecessors had used a portion of my clients’ property to access the beach for a period of more than ten years. I evaluated the claim and succeeded in negotiating a settlement to the full satisfaction of my clients, including the placement, in perpetuity, of extensive restrictions on the use of the easement area and a substantial payment.

 

*Equitable cases are cases where a party is asking for the Court to make the other party do something, rather than merely seeking money damages.