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New York Law Journal

A client is interested in acquiring real property that is benefited by an easement across the adjacent parcel. The client considers the easement, which was expressly granted, to be of significant value and intends to use it. However, the current owner has never used the easement and it is uncertain as to whether the easement has ever been used by any predecessor in title. Has the easement been abandoned? Has the easement been extinguished by adverse possession? Is the easement still valid? The prudent real estate lawyer must conduct further investigation to identify and protect the client’s rights.

This article will outline various legal issues relating to unused/unopened easements, and will provide the practitioner with some practical suggestions in representing the easement holder.

Adverse Possession

Although New York courts have long-recognized that “an easement created by grant may be extinguished by adverse possession”, a rule has been applied to “unopened” easements – i.e., easements that have been created by grant but have remained unused. Generally, a possession will not be deemed adverse to an unopened easement or right of way until three conditions have been satisfied: (1) the need by the easement holder for the right of way has arisen, (2) a demand has been made by the easement holder that the right of way be opened, and (3) the servient tenant (property owner) has refused the demand.

The rationale underlying this exception to the general rule of adverse possession is that if an easement is not “definitively located and developed through use,” it is not yet in functional existence and the easement holder could not be expected to have notice of the adverse claim until either the easement is opened or the easement holder demands that it be opened and such demand has been refused. This theory was articulated by the Second Department in Castle Associates v. Schwartz, 63 A.D.2d 481 (2d Dep't 1978).

There, plaintiff brought an action in 1976 to compel the location and opening of an “unopened” easement that had been granted by deed dated March 26, 1903. The terms of the grant did not specifically locate or define the easement, but merely provided for a 12-foot wide right of way running easterly across the servient estate. The right of way was never used, and defendant's predecessors had erected a fence around its boundary.

Recognizing that “the courts may exercise their equitable powers to locate an easement where the parties have failed to specifically designate the route”, the Second Department declared that the plaintiff had an easement over the northwest corner of the defendant's property, emphasizing that: (1) the easement was never definitively located in the deed; (2) the easement was never “opened” (i.e. it was never used, nor was a demand ever made to defendant or his predecessors that it be opened for use); and (3) a portion of the dominant estate (held by the easement holder) had remained undeveloped because it was inaccessible from the west and required use of the easement which was specifically granted for the purpose of access. The court stated:

It is our view that the erection of the fence on the defendant’s property prior to any demand for an opening of the right of way was not adverse to the existence of the easement and that, in the light of the strong public policy against the extinguishment of easements created by specific grant, the plaintiff if entitled to prevail.

Although Castle Associates provides guidance in the instance of an unopened easement that is not definitively located, the holding does not address the question of what happens when an easement is definitively located, but it has not yet been determined whether the easement has ever been “opened” or “developed through use.” The Court of Appeals case of Spiegel v. Ferraro, 73 N.Y.2d 622 (1989) provides guidance on this issue.

In Spiegel, the owner of the dominant estate brought an action in 1982 to permanently enjoin the lessee of the servient estate from obstructing his alleged easement with a solid chain-link fence. The easement at issue had been created by grant in 1954 as a result of a subdivision, and the dominant estate obtained a nonexclusive right of ingress and egress over the servient estate affording access to the nearby road. Plaintiff's deed located the easement, which ran east to west, at the northern 50 feet of the servient parcel and which had been used for a time by plaintiff's predecessors as a means of access to this road.

Sometime prior to 1958, a solid chain link fence had been erected along the common boundary between the two parcels. The dominant parcel was conveyed to plaintiff in 1970 and the defendant acquired the servient parcel in 1982. The servient parcel, however, had been leased to an auto body shop since 1966, and defendant renewed the lease in 1982.

Initially, upon commencing its tenancy in 1966, the auto body shop had installed two gates at various points over the easement and held the only keys to the gates. The auto body shop also re-paved the easement, installed lights around its property, had guard dogs patrol the servient parcel, and parked wrecked cars over the easement. As a result, the easement had not been used by plaintiff or his predecessors since 1966. In 1977, plaintiff demanded that the obstructions blocking plaintiff's use of the easement be removed, and in 1982 brought an action to permanently enjoin defendant and the lessee auto body shop from obstructing the easement.

The Spiegel Court held that the easement had been effectively extinguished by adverse possession in 1976. Thus, the court found the facts to be clearly distinguishable from Castle Associates, and declined to apply the Castle Associates holding because (1) plaintiff's easement in this case was definitively located through use prior to 1977, (2) plaintiff's deed specifically located the easement, and (3) the easement was definitively and functionally in existence before it was closed off in 1966.

Thus, Spiegel effectively narrowed the scope of the Castle Associates decision by concluding that there was no requirement that the easement owner demand the removal of obstructions blocking the easement before it may be extinguished by adverse possession where the easement had been definitively located and developed through use. The Spiegel Court stated that “to impose a demand requirement for the extinguishment of a definitively located and usable easement would allow the exception to swallow the general rule that the period of prescription begins to run when a party acting under a claim of right commences a use of the easement that is adverse to the owner.”

Equitable Considerations

It is well established that an easement created by grant will not be extinguished by nonuse or abandonment alone since “the owner of the dominant estate is under no duty to make use of the easement as a condition to retaining his interest therein.” It is necessary to establish both an intention to abandon and also some overt act, or failure to act, which evinces an unequivocal intention to abandon and clearly demonstrates the permanent relinquishment of all right to the easement.

For example, in DeJong v. Abphill Associates, 121 A.D.2d 678 (2d Dep't 1986), the court held that the plaintiff-easement holder was entitled to a declaration that he had an easement, as recorded, notwithstanding the fact that a six-to-eight foot high concrete retaining wall had been constructed on the servient estate and erected across the easement. In DeJong, plaintiff's predecessor-in-title had been granted an easement of way across the northern strip of defendant's predecessor's adjoining property in 1968. The easement was duly recorded in the Office of the Clerk of Rockland County, but plaintiff's predecessor never made use of it. In 1973, defendant’s predecessor constructed an apartment building complex on the servient estate and erected the concrete retaining wall across the easement. Defendant acquired its parcel in 1974 and plaintiff acquired his parcel in 1976.

Plaintiff thereafter brought an action to enjoin defendant from interfering with an alleged easement providing access to his property, and to recover damages as a result of defendant’s obstruction. The DeJong Court rejected defendant’s assertion that the easement had been effectively abandoned, holding that:

The evidence of nonuse, coupled with the failure to act, on the part of the plaintiff and his predecessors, prior to the instant action, does not establish abandonment (Castle Assoc. v. Schwartz, 63 A.D.2d 461, 407 N.Y.S.2d 717). The construction of obstructions on the easement was merely ‘evidence of nonuser and nothing more’ (Welsh v. Taylor, 134 N.Y. 450, 459, 31 N.E. 896). Accordingly, the plaintiff is entitled to a declaration that he has an easement, as recorded . . . and that the easement has not been abandoned. The defendant is directed, at its own expense, to remove any obstructions to the plaintiff's access to the easement, and upon its failure to do so, the plaintiff may remove any obstructions, at the expense of the defendant.

However, nonuse of an easement, coupled with a clear intention to abandon the right, will be deemed to effectively extinguish an easement. In Albanese v. Dominianni, 281 A.D. 768 (2d Dep't 1953), plaintiff sought to restrain defendants from maintaining an encroachment blocking the effective use of an easement granted by defendants' predecessor-in-title to plaintiff's predecessor-in-title. The Second Department held that plaintiff's easement had been abandoned based upon plaintiff's own actions, coupled with plaintiff's acquiescence in defendant’s actions, and stated:

The nonuser of the easement by plaintiffs and their predecessors in title for more than twenty years; the construction by plaintiffs' predecessors in title and the maintenance thereafter for more than twenty years by plaintiffs' predecessors and by plaintiffs, of a curbing, wooden fence, and garden, which prevented the use of the easement by plaintiffs; and the plaintiffs' acquiescence in defendants' construction and maintenance of a curbing, metal fence, and garden on defendants' property, were sufficient to constitute an abandonment by plaintiffs of their easement. (citations omitted).

Id. at 348.

Thus, silence on the part of the easement holder when faced with a duty to speak may constitute an acquiescence sufficient to imply that the easement holder intended to relinquish its rights. However, as demonstrated by DeJong, this argument is diluted when the easement has never been “opened”.

As a general rule, equitable considerations will also be weighed against the remedy of removing existing buildings in order to enforce a plaintiff's right of way. See, Maspeth Branch Realty, Inc. v. Waldbaum, Inc., 20 A.D.2d 896 (2d Dep't 1964) (“Difficult questions sometimes arise as to whether an injunction should issue against the erection and maintenance of structures or installations in violations of another's rights, when the structures or installations have already been built at great cost, especially when weighed against the extent of the harm done thereby to the plaintiff.”)

Finally, the doctrine of laches may also provide a viable affirmative defense to the claims of an easement holder. Even in the absence of an abandonment, an easement holder may nevertheless be estopped from asserting his/her rights where the owner stands by without objection and fails to protest when there is a duty and opportunity to speak, or where the owner “makes representations to another with the intention that the other may act thereon or which fairly justify the other in so acting, and the other takes action upon the faith of such representations.”

Statute Of Limitations

Notwithstanding the 10-year prescription period for an adverse possession to occur, the owner of land benefited by an easement must also be mindful of the statute of limitations of CPLR §213(1) which provides that an action for a permanent injunction to remove an obstruction which interferes with an affirmative easement must be commenced within six years of the obstruction. However, it should be noted that the statute of limitations will be tolled if the easement at issue was never opened.

In Rabinowitz v. American Tire Works, 146 A.D.2d 760 (2d Dep't 1989), plaintiff , who had acquired property in 1984 along with a right-of-way across defendant's property, brought an action for a permanent injunction seeking removal of a fence erected by defendant which blocked the alleged right-of-way. Defendant cross-moved for summary judgment dismissing the complaint pursuant to CPLR §213(1).

The Second Department denied the motions and held that the statute of limitations issue could not be determined on the record before it, stating: “If the right-of-way was unopened, then this action did not accrue until the plaintiff demanded the removal of the fence and the opening of the right-of-way (see, Castle Associates v. Schwartz, 63 A.D.2d 481, 407 N.Y.S.2d 717). However, if the right-of-way was in use, then the cause of action accrued at the time one of the defendant's predecessors in title interfered with that use by erecting the fence (see, Castle Associates v. Schwartz, supra).”

Practical Suggestions

The “unopened” or “unused” easement poses interesting challenges to the real estate practitioner. Below are some practical considerations for ascertaining and protecting the rights of the easement holder when there is a question of non-usage or obstruction of an easement:

• Determine if the easement has ever been specifically located through description, survey or usage to determine the likelihood of its having been opened;
  
• In addition to having the subject properties physically inspected, have the easement shown on a survey and compare it to other available surveys to determine if there are any existing encroachments or obstructions, or evidence of the benefited owner’s intention to abandon the rights;
  
• To the extent possible, conduct an historical investigation to determine whether the easement has ever been used by any predecessor-in-title or if the easement has ever been subject to obstruction;
  
• Consult with the title insurance company and be sure to have the instrument granting the easement included in the fee policy’s Schedule C description of the property (i.e., the metes and bounds description) by including language such as “together with all terms, provisions, covenants, conditions and rights granted under [insert name and recording information of the instrument granting easement]”.

In summary, a thorough analysis of the road less traveled may make all the difference.


Eric D. Cherches is Of Counsel to Tarter Krinsky & Drogin LLP, and Alan M. Tarter and Andrew N. Krinsky are partners at the firm. Tarter Krinsky & Drogin LLP has offices in New York, New York and Princeton, New Jersey.



¹ See, Harlem Commonwealth Council, Inc. v. Thomas Memorial Wesleyan Methodist Church, 10 A.D.3d 572 (1 st Dep’t 2004); Spiegel v. Ferraro, 73 N.Y.2d 622, 625 (1989); Gerbig v. Zumpano, 7 N.Y.2d 327 (1960). While adverse possession is a well settled and time honored doctrine in New York, it becomes increasingly complicated when applied to easements. To sustain a claim that an easement has been extinguished by adverse possession, a party must establish that the impediment to the easement is: (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for a period of ten years. Brand v. Prince, 35 N.Y.2d 634, 636 (1975); Mag Associates, Inc. v SDR Realty, Inc., 247 A.D.2d 516 (2d Dep’t 1998).

² Castle Associates v. Schwartz, 63 A.D.2d 481, 491 (2d Dep't 1978); Filby v. Brooks, 105 A.D.2d 826 (2d Dep't 1984), aff'd 66 N.Y.2d 640 (1985).

³ See , Will v. Gates, 254 A.D.2d 275 (2d Dep’t 1998) (“a ‘paper’ easement, not located and developed through use, may not be extinguished by adverse possession absent a demand by the owner of the easement that the easement be opened, and refusal by the party in adverse possession”).

⁴ 63 A.D.2d at 491.

⁵ 73 N.Y.2d at 627.

³ See generally, Gerbig v. Zumpano, 7 N.Y.2d 327, 331 (1960) (“In order to prove an 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”).

7 Castle Associates v. Schwartz , 63 A.D.2d at 487.

8 See, Kolczynski v. Greene, 280 N.Y. 712, 714 (1939) (Court of Appeals dismissed plaintiff’s action to enjoin the State of New York from maintaining a fence which obstructed an alleged right-of-way from his property to a major highway finding the plaintiff guilty of laches in that he permitted the State to put into effect plans for park areas, planting of trees and shrubs before the commencement of the suit).

9 Andrews v. Cohen , 221 N.Y. 148, 153 (1917).

¹⁰ Actions to enjoin the breach of negative easements are governed by a two year statute of limitations found in RPAPL § 2001. A “negative” easement does not entitle the owner of the dominant estate to any use or enjoyment of land subject to the easement to which he would not be entitled if the easement did not exist, but rather it permits him to limit or prohibit the owner of the servient estate from doing acts upon it which, were if not for the easement, the latter would be privileged to do. RPAPL Section 2001 provides, in substance, that unless suit is commenced before the expiration of two years from the completion of the structure, it shall be conclusively presumed that the plaintiff's right of action for an injunction has been released. See generally, Rahabi v. Morrison, 81 A.D.2d 434, 439 (2d Dep’t 1981).

¹¹ Filby v. Brooks , 105 A.D.2d at 828.

¹² Title companies in New York will not issue an endorsement to cover an easement other than a New York City “Development Rights” Endorsement covering an air and light easement.


Title companies in New York will not issue an endorsement to cover an easement other than a New York City “Development Rights” Endorsement covering an air and light easement.

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