Real Property Law

Dominant Owner Entitled to Reformation of Deed Creating Easement

Miller v. Seibt

NYLJ 1/3/05, p. 30, col. 1

AppDiv, Second Dept

(memorandum opinion)

In an action by a servient owner to recover damages for trespass, and to enjoin the dominant owner from using the disputed easement for any purpose other than ingress or egress, the servient owner appealed from the Supreme Court's denial of the requested injunction, from its determination that the dominant owner had a right to use the disputed easement for parking purposes, and from its determination that an agreement to permit the dominant owner to use an adjacent barn was valid. The Appellate Division affirmed, holding that the dominant owner was entitled to reformation of the deed creating the easement, and that the dominant owner had in any event acquired an irrevocable license to use the barn.

The deeds creating the easement, executed in 1983 and 1992, did not expressly confer on the dominant owner a right to park on the easement. The parties also entered into a 99-year agreement permitting the dominant owner to use and occupy a barn adjacent to the subject premises. Evidence submitted by the dominant owner established that the intent of the parties was to permit the dominant owner to park on the easement. In response to the servient owner's action for an injunction, the dominant owner sought reformation of the deed to reflect the parties' intent.

In holding that the dominant owner was entitled to reformation, the court held that because the omission of the right of a part was the result of a scrivener's error, the dominant owner was entitled to reformation. In addition, the court held that the dominant owner's use for a 10-year period created an easement by prescription. Finally, the court held that the dominant owner's expenditure of substantial funds to renovate the barn created an irrevocable license to use the barn for 99 years even if the original agreement was not enforceable on its owner terms.

Easement Not Extinguished By Adverse Possession or Abandonment

Koudellou v. Sakalis

NYLJ 1/5/05, p. 20, col. 1

Supreme Ct., Queens Cty

(Grays, J.)

In an action by a dominant owner for a judgment declaring that it has an easement to a driveway located on the land of the servient owner, both dominant and servient owners sought summary judgment. The court granted summary judgment to the dominant owner, holding that the recorded easement had not been extinguished by adverse possession, abandonment, or estoppel.

The dominant and servient owner own adjacent single-family homes in Astoria. The homes share a party wall, and a single driveway on the south side of the servient parcel contains a driveway that leads to garages on both parcels. In 1922, the common owner of the two parcels sold off the dominant parcel together with an easement for ingress or egress over the most southerly 7 feet of the servient parcel, and then across to the dominant parcel. The following day, the common owner sold off the servient parcel, subject to the easement. Subsequent deeds to both parcels consistently referred to the easement. In 1987, the father of the current servient owner built a wooden fence between the two garages, effectively separating them. The servient owner later installed a gate at the entrance way to the driveway. The dominant owners made no objection to the fence or the gate because it created a safe and separate area in the rear of each house for children to play. In 2002, however, the dominant owner requested removal of the fence, and the servient owner refused, provoking this action.

In awarding summary judgment to the dominant owner, the court rejected the servient owner's contention that the easement had been terminated by adverse possession, concluding that because the fence was erected in 1997 with consent and knowledge of the dominant owner, the servient owner could not make a claim of right to the driveway area, and was therefore precluded from asserting an adverse possession claim to that area. The court then rejected the servient owner's claim that dominant owner had abandoned the easement, noting that non-use alone does not constitute abandonment, and that the servient owner had proffered no other evidence of abandonment. Finally, the court found no facts that would estop the dominant owners from seeking removal of the fence.

COMMENT

When the statutory period for extinguishing an easement by adverse possession has not yet run, a party seeking to extinguish an easement may attempt to demonstrate an abandonment by the dominant owner. New York courts invoke the doctrine of abandonment to terminate easements when the dominant owner takes affirmative action inconsistent with the easement. For example, in Arena v. Prisco, 81 NYS2d 627, the court found that both parties had abandoned a common driveway easement through non-use along with substantial improvements that prevented use of the driveway. Both dominant parties used their respective portions of a common driveway for their own exclusive purposes. One party erected an iron fence in the front of his portion of the driveway and planted a large tree that grew to a height of 2 stories. The second party cooperated in the erection of the fences and set apart a portion of her driveway for planting purposes. She further constructed a cesspool and a brick stoop upon her portion of the driveway along with an ornamental brick wall on the front of the driveway. Because each dominant party took actions inconsistent with his own easement, the court was able to conclude that both easements were extinguished by abandonment of the dominant owners.

However, when the servient owner alone builds obstructions to the easement, New York courts are less likely to find an abandonment. In Wallkill Homeowners Assoc., Inc. v. Velazquez, 205 AD2d 681, the court found that unilateral construction upon an easement by a servient owner is merely evidence of the dominant owner's non-use and is insufficient to extinguish an easement by abandonment. In Wallkill, a 25-foot easement held by the homeowners association was never developed or used. The servient owners blocked the easement with various obstructions. The court did not find an abandonment. Similarly, in De Jong v. Abphill Assoc., 121 AD2d 678, the court determined that the evidence was insufficient to show that the dominant owner had abandoned his rights to an easement by grant by non-use alone. In De Jong, the dominant owner acquired a parcel of land along with a 20-foot-wide easement. A high retaining wall located on the servient estate obstructed the right of way. The servient owner refused the demand to remove the obstruction. The court held that evidence of non-use, coupled with the failure to act, is insufficient to establish an abandonment.

New York courts do not extinguish easements by estoppel unless the dominant owner has induced the servient owner to obstruct the easement. For example, in Andrews v. Cohen, 221 NY 148, the court did not find that an easement was extinguished in spite of expenditures made by the servient owner. In this case, a servient owner erected various structures upon the easement, some which impeded dominant owner's use. The parties had general conversations as to the servient owner's plans in regards to the parcel and the dominant owner made no objection to the proposed alterations. The court did not extinguish the easement by estoppel, because of the failure of the servient owner to establish that he was induced to proceed by the dominant owner. The Court ordered servient owner to remove all of the improvements upon the easement and rejected the Appellate Division's remedy, which merely directed servient owner to remove the obstructive improvements based on equitable factors.

Landmarks Commission Can Order Owner to Restore Landmarked Building

City of New York v. 10-12 Cooper Square, Inc.

NYLJ 12/28/ 04, p. 18, col. 1

Supreme Ct., N.Y. Cty

(Tolub, J.)

The city landmarks preservation commission brought an action to compel a landowners to restore a landmarked building to good repair. The court issued the requested order, concluding that deference was due to the determination by the landmarks commission with respect to the building's state of repair.

The subject building, known as the Skidmore House, is 159 years old, and was designated as a landmark in 1970. The current landowner purchased the building in 1988, and the city contends that the landowner has failed to maintain the building, resulting in a roof collapse and the risk that the architectural elements that made the building a landmark will be lost. As a result, the city sought an order requiring landowner to make the exterior of the building watertight, to maintain architectural elements on the building's exterior, and to maintain the interior to avoid deterioration, decay or damage. The landowner responded by contending that the premises are in good repair, and that the city's interpretation of good repair is unreasonable.

In awarding the commission the requested relief, the court relied on reports prepared for the commission over a period of years, all describing the building's state of repair, and indicated that the courts would defer to a determination of an administrative agency when that decision falls within the agency's expertise. The court then addressed the landowner's contention that it could not be required to maintain the building in better condition than the state of repair that existed at the time it acquired title. The court declined to resolve that question, noting that photographs reveal that the building had significantly deteriorated during the current landowner's period of ownership. Finally, the court noted that the commission had not produced evidence that the interior of the building had fallen into disrepair, but held that the commission should be afforded an opportunity to inspect the interior to determine whether judicial intervention would be appropriate.

Dominant Owner Entitled to Reformation of Deed Creating Easement

Miller v. Seibt

NYLJ 1/3/05, p. 30, col. 1

AppDiv, Second Dept

(memorandum opinion)

In an action by a servient owner to recover damages for trespass, and to enjoin the dominant owner from using the disputed easement for any purpose other than ingress or egress, the servient owner appealed from the Supreme Court's denial of the requested injunction, from its determination that the dominant owner had a right to use the disputed easement for parking purposes, and from its determination that an agreement to permit the dominant owner to use an adjacent barn was valid. The Appellate Division affirmed, holding that the dominant owner was entitled to reformation of the deed creating the easement, and that the dominant owner had in any event acquired an irrevocable license to use the barn.

The deeds creating the easement, executed in 1983 and 1992, did not expressly confer on the dominant owner a right to park on the easement. The parties also entered into a 99-year agreement permitting the dominant owner to use and occupy a barn adjacent to the subject premises. Evidence submitted by the dominant owner established that the intent of the parties was to permit the dominant owner to park on the easement. In response to the servient owner's action for an injunction, the dominant owner sought reformation of the deed to reflect the parties' intent.

In holding that the dominant owner was entitled to reformation, the court held that because the omission of the right of a part was the result of a scrivener's error, the dominant owner was entitled to reformation. In addition, the court held that the dominant owner's use for a 10-year period created an easement by prescription. Finally, the court held that the dominant owner's expenditure of substantial funds to renovate the barn created an irrevocable license to use the barn for 99 years even if the original agreement was not enforceable on its owner terms.

Easement Not Extinguished By Adverse Possession or Abandonment

Koudellou v. Sakalis

NYLJ 1/5/05, p. 20, col. 1

Supreme Ct., Queens Cty

(Grays, J.)

In an action by a dominant owner for a judgment declaring that it has an easement to a driveway located on the land of the servient owner, both dominant and servient owners sought summary judgment. The court granted summary judgment to the dominant owner, holding that the recorded easement had not been extinguished by adverse possession, abandonment, or estoppel.

The dominant and servient owner own adjacent single-family homes in Astoria. The homes share a party wall, and a single driveway on the south side of the servient parcel contains a driveway that leads to garages on both parcels. In 1922, the common owner of the two parcels sold off the dominant parcel together with an easement for ingress or egress over the most southerly 7 feet of the servient parcel, and then across to the dominant parcel. The following day, the common owner sold off the servient parcel, subject to the easement. Subsequent deeds to both parcels consistently referred to the easement. In 1987, the father of the current servient owner built a wooden fence between the two garages, effectively separating them. The servient owner later installed a gate at the entrance way to the driveway. The dominant owners made no objection to the fence or the gate because it created a safe and separate area in the rear of each house for children to play. In 2002, however, the dominant owner requested removal of the fence, and the servient owner refused, provoking this action.

In awarding summary judgment to the dominant owner, the court rejected the servient owner's contention that the easement had been terminated by adverse possession, concluding that because the fence was erected in 1997 with consent and knowledge of the dominant owner, the servient owner could not make a claim of right to the driveway area, and was therefore precluded from asserting an adverse possession claim to that area. The court then rejected the servient owner's claim that dominant owner had abandoned the easement, noting that non-use alone does not constitute abandonment, and that the servient owner had proffered no other evidence of abandonment. Finally, the court found no facts that would estop the dominant owners from seeking removal of the fence.

COMMENT

When the statutory period for extinguishing an easement by adverse possession has not yet run, a party seeking to extinguish an easement may attempt to demonstrate an abandonment by the dominant owner. New York courts invoke the doctrine of abandonment to terminate easements when the dominant owner takes affirmative action inconsistent with the easement. For example, in Arena v. Prisco, 81 NYS2d 627, the court found that both parties had abandoned a common driveway easement through non-use along with substantial improvements that prevented use of the driveway. Both dominant parties used their respective portions of a common driveway for their own exclusive purposes. One party erected an iron fence in the front of his portion of the driveway and planted a large tree that grew to a height of 2 stories. The second party cooperated in the erection of the fences and set apart a portion of her driveway for planting purposes. She further constructed a cesspool and a brick stoop upon her portion of the driveway along with an ornamental brick wall on the front of the driveway. Because each dominant party took actions inconsistent with his own easement, the court was able to conclude that both easements were extinguished by abandonment of the dominant owners.

However, when the servient owner alone builds obstructions to the easement, New York courts are less likely to find an abandonment. In Wallkill Homeowners Assoc., Inc. v. Velazquez, 205 AD2d 681, the court found that unilateral construction upon an easement by a servient owner is merely evidence of the dominant owner's non-use and is insufficient to extinguish an easement by abandonment. In Wallkill, a 25-foot easement held by the homeowners association was never developed or used. The servient owners blocked the easement with various obstructions. The court did not find an abandonment. Similarly, in De Jong v. Abphill Assoc., 121 AD2d 678, the court determined that the evidence was insufficient to show that the dominant owner had abandoned his rights to an easement by grant by non-use alone. In De Jong, the dominant owner acquired a parcel of land along with a 20-foot-wide easement. A high retaining wall located on the servient estate obstructed the right of way. The servient owner refused the demand to remove the obstruction. The court held that evidence of non-use, coupled with the failure to act, is insufficient to establish an abandonment.

New York courts do not extinguish easements by estoppel unless the dominant owner has induced the servient owner to obstruct the easement. For example, in Andrews v. Cohen, 221 NY 148, the court did not find that an easement was extinguished in spite of expenditures made by the servient owner. In this case, a servient owner erected various structures upon the easement, some which impeded dominant owner's use. The parties had general conversations as to the servient owner's plans in regards to the parcel and the dominant owner made no objection to the proposed alterations. The court did not extinguish the easement by estoppel, because of the failure of the servient owner to establish that he was induced to proceed by the dominant owner. The Court ordered servient owner to remove all of the improvements upon the easement and rejected the Appellate Division's remedy, which merely directed servient owner to remove the obstructive improvements based on equitable factors.

Landmarks Commission Can Order Owner to Restore Landmarked Building

City of New York v. 10-12 Cooper Square, Inc.

NYLJ 12/28/ 04, p. 18, col. 1

Supreme Ct., N.Y. Cty

(Tolub, J.)

The city landmarks preservation commission brought an action to compel a landowners to restore a landmarked building to good repair. The court issued the requested order, concluding that deference was due to the determination by the landmarks commission with respect to the building's state of repair.

The subject building, known as the Skidmore House, is 159 years old, and was designated as a landmark in 1970. The current landowner purchased the building in 1988, and the city contends that the landowner has failed to maintain the building, resulting in a roof collapse and the risk that the architectural elements that made the building a landmark will be lost. As a result, the city sought an order requiring landowner to make the exterior of the building watertight, to maintain architectural elements on the building's exterior, and to maintain the interior to avoid deterioration, decay or damage. The landowner responded by contending that the premises are in good repair, and that the city's interpretation of good repair is unreasonable.

In awarding the commission the requested relief, the court relied on reports prepared for the commission over a period of years, all describing the building's state of repair, and indicated that the courts would defer to a determination of an administrative agency when that decision falls within the agency's expertise. The court then addressed the landowner's contention that it could not be required to maintain the building in better condition than the state of repair that existed at the time it acquired title. The court declined to resolve that question, noting that photographs reveal that the building had significantly deteriorated during the current landowner's period of ownership. Finally, the court noted that the commission had not produced evidence that the interior of the building had fallen into disrepair, but held that the commission should be afforded an opportunity to inspect the interior to determine whether judicial intervention would be appropriate.