Types of Easements and Their Enforcement in New York
By Kelsey A. Shaffer, Esq.
Countless properties across New York State are subject to rights of way or other easements. At its core, an easement is a burden that is imposed on property that benefits one estate (the dominant estate) or person and disadvantages another estate (the servient estate) or person—with the owner of an easement having the right to utilize or access some portion of another’s property. (See, Easement appurtenant, 1 N.Y. Law & Practice of Real Property § 18:8 [2d ed.]).
There are generally two types of easements described in New York State case law: (1) an easement appurtenant (or an easement that runs with the land); and (2) an easement in gross (or a “personal easement”/“license”). (See, Simmons v Abbondandolo, 184 A.D.2d 878, 879 [3d Dept. 1992]). When a dispute over an easement occurs, a threshold question often may be whether the easement is an actual easement that runs with the land—or simply a personal covenant.
An easement appurtenant passes with the land itself—and when the benefited and/or burdened parcels are transferred, the rights and obligations relating to the easement can pass to the subsequent owner(s). (See, Easement appurtenant, 1 N.Y. Law & Practice of Real Property § 18:8 [2d ed.]). Such an easement can be created where the right in question: (1) is conveyed in writing; (2) is subscribed to by the person creating the easement; and (3) burdens the servient estate for the benefit of the dominant estate. (Webster v Ragona, 7 A.D.3d 850, 853 [3d Dept 2004]; Niceforo v. Haeussler, 276 A.D.2d 949, 950 [3d Dept. 2000]). New York courts have held that “[o]nce created an easement appurtenant may be extinguished only by abandonment, conveyance, condemnation or adverse possession.” (Niceforo, 276 A.D.2d at 949).
By contrast, an easement in gross or license is a personal interest in the real property of another—generally without the right to inherit or assign that interest to another person. (Easement in gross, 1 N.Y. Law & Practice of Real Property § 18:9 [2d ed.]). Courts in New York frequently disfavor personal easements—and will often make efforts to construe such an easement as running with the land. (Easement in gross not favored by the courts, 1 N.Y. Law & Practice of Real Property § 18:10 [2d ed.]). Personal easements or licenses may be terminated either at will by the parties; when the burdened land is transferred or assigned to another owner; or when one of the parties to the easement dies. (See, id.).
To determine whether a right of way is an easement appurtenant or a license, courts primarily look to the “language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties” (Niceforo, 276 A.D.2d at 950, quoting Hopper v. Friery, 260 A.D.2d 964, 966 [3d Dept. 1999]). In Cronk v Tait, for instance, the Third Department determined that an easement was appurtenant where Defendant’s deed did not reserve the right-of-way to the Plaintiff’s predecessor personally, “nor did it contain language creating a reversionary interest or right of revocation in [the Defendant] or her heirs.” (Cronk v Tait, 305 A.D.2d 947, 949 [3d Dept. 2003]).
On the other hand, the Third Department has found an easement to be personal where specific language is used in the deed. (Simmons v Abbondandolo, 184 A.D.2d 878 [3d Dept. 1992]). In Simmons v. Abbondandolo, for example, the Court found that “by reserving the right-of-way to plaintiff and his wife ‘personally’ and by limiting its duration to the period when plaintiff and his wife continued to own the benefitted property, the parties rendered the privilege to use the driveway [in question] impermanent and inalienable, with no characteristic of an interest in realty.” (Simmons, 184 A.D.2d at 879).
Inherent in an easement is the basic assumption that the easement holder's right of passage will not be impaired. (See Sambrook v Sierocki, 53 A.D.3d 817, 818 [3d Dept. 2008]).
Where a person exceeds the scope of an easement (such as by blocking a right of way), an aggrieved party may commence an action for trespass, seeking monetary damages. (See, Boice v Hirschbihl, 128 A.D.3d 1215, 1216 [3d Dept. 2015]; Pawelski v Osczepinski, 192 A.D.3d 1038 [2d Dept 2021]). Alternatively, a party aggrieved by another’s failure to comply with the terms of an easement may seek equitable relief by asking a court to determine the parties’ rights to the easement. (See, e.g., NY RPAPL § 1501; NY CPLR § 402). Under such circumstances, “[t]he supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties.” (CPLR § 3001).
There is also the option of seeking injunctive relief—such as a preliminary injunction and temporary restraining order. (See, CPLR § 6311). While an action for injunctive relief is pending, a preliminary injunction can even be obtained; or even a temporary restraining order—if the plaintiff can show that “immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had.” (CPLR § 6301; 6313(a)). Once an injunction is issued, any further violations could constitute contempt of court. (§ 3001; § 5104).
Parties to an easement considering legal action should be aware of the statutes of limitations involved. While ongoing violations may cause the statutes of limitations to accrue again and again, the limitations period for a claim of trespass is three years (CPLR § 214(4)). A request for a declaratory judgment generally must be brought within six years. (See, CPLR 213(1)). However, depending on the substantive nature of the underlying claim, the action could be governed by a shorter period of limitation. (See Schulman v Schulman, 166 A.D.3d 833, 834 [2d Dept. 2018]). The limitations period may also limit any monetary damages that are recoverable.
References
NY RPAPL § 1501.
NY CPLR § 304; § 402; § 403; § 3001; § 3031 § 5104; § 6311; § 6301; § 6313.
1 N.Y. Law & Practice of Real Property (2d ed.), §§ 18:8-18.10.
Pawelski v Osczepinski, 192 A.D.3d 1038 [2d Dept. 2021].
Schulman v Schulman, 166 A.D.3d 833, 834 [2d Dept. 2018].
Boice v Hirschbihl, 128 A.D.3d 1215 [3d Dept. 2015].
Gates v AT&T Corp., 100 A.D.3d 1216 [3d Dept. 2012].
Sambrook v Sierocki, 53 A.D.3d 817 [3d Dept. 2008].
Webster v Ragona, 7 A.D.3d 850 [3d Dept. 2004].
Cronk v Tait, 305 A.D.2d 947 [3d Dept. 2003].
Niceforo v. Haeussler, 276 A.D.2d 949, 950 [3d Dept. 2000].
Simmons v Abbondandolo, 184 A.D.2d 878 [3d Dept. 1992].