Real Property Law

No Implied Easement Without Deed from Common Grantor

H.S. Farrell, Inc. v. Formica Construction Co., Inc.

NYLJ 6/27/07, p. 29, col. 6

AppDiv, Second Dept

(memorandum opinion)

In an action by landowner to enjoin neighbor from closing a street abutting its land, neighbor appealed from the Supreme Court's judgment ordering removal of obstructions on the street. The Appellate Division modified, holding that landowner had not established that it possessed an implied easement over neighbor's land.

Landowner and neighbor each own land abutting Gales Lane, a private street on Staten Island. Gales Lane is a dead-end street that meets a public highway at one end, but neighbor maintains a fence on that end, blocking access to the public highway, and neighbor uses Gales Lane for the storage of materials. Landowner brought this action to compel removal of the obstructions, contending that landowner holds an implied easement over Gales Lane. Landowner relied on a subdivision map filed in 1847, which depicts landowner's land as abutting Gales Lane, and on a 1971 deed, referring to the map, whereby neighbor acquired title to its parcel from its predecessors. Neighbor contends that it had extinguished any easement by adverse possession because it had excluded landowner from the parcel for a 10-year period. Supreme Court awarded judgment to landowner, concluding that because landowner had received a conveyance with reference to a subdivision map that showed the street, landowner had acquired an implied easement over the street. Neighbor appealed.

In modifying, the Appellate Division emphasized that landowner had not offered any of the deeds in its chain of title, including the 1957 deed by which it acquired title to its parcel. The court noted that landowner had offered no evidence that a common grantor had subdivided the land pursuant to the subdivision map, and indicating that an implied easement would not arise unless the deed conveying land from the common grantor to landowner's predecessor had included language referring to the filed subdivision map. In the absence of such evidence, landowner could not establish existence of an implied easement. The court also rejected neighbor's adverse possession counterclaim, noting that neighbor had not demonstrated exclusive use for the requisite statutory period.

COMMENT

When a grantor conveys property by a deed that references a subdivision map showing a private road abutting the property, courts presume that the grantor intended to convey an easement over the private road to the grantee, and enforce that intention. Thus, in Firsty v. De Thomasis, 177 A.D.2d 839, the court held that a subdivider had created an easement across a private road when the original deed from the subdivider referenced a subdivision map in which the property abutted the private road. Even though the deed did not mention the road explicitly, the court took the facts that the map showed the property abutting the road and that the deed referenced the map to support the presumption that the grantor intended to imply an easement.

To establish the existence of an easement implied from reference to a subdivision map, the dominant landowner must produce the original deed from the common grantor, and the original deed must reference the subdivision map. Thus, in Coccio v. Parisi, 151 A.D.2d 817, the court held that the failure of the dominant owner to produce the deed from the common grantor precluded the finding of an easement. Even though the common grantor's a subdivision map showed a private road abutting the dominant owner's property, and subsequent conveyances of the dominant and servient properties made reference to the map, the lack of the original deed from the common grantor was fatal to dominant owner's easement claim. And in Palma v. Mastroianni, 276 A.D.2d 894, the court rejected an implied easement claim when the original deed from the common grantor did not refer to a subdivision map, even though the common grantor had previously filed the subdivision map with the county clerk. The court noted that the deed described the property in terms of metes and bounds, and made no reference to subdivision map, the abutting private road in question, or any of the other lots on the subdivision map.

An implied easement created by reference to a subdivision map does not include all roads shown on the subdivision map, but will only extend to roads necessary to gain access to a public roadway. In De Rescio v. Jackson, 164 A.D.2d 684, the court held that an implied easement extended only over an abutting road up to the closest private crossroad that would give the dominant landowner the most direct access to a public highway. As a result, the owner of property depicted on the subdivision map as another road was free to close off that other road, denying the dominant landowner any right of way.

Tenant Has Standing to Challenge Tax Assessment

Matter of Greenburger v. Tax Commission

NYLJ 6/26/07, p. 22, col. 1

Supreme Ct., N.Y. Cty

(Schoenfeld, J.)

In a proceeding to review a real property tax assessment, the New York City Tax Commission moved to dismiss, alleging that petitioner was not an aggrieved party, and hence lacked standing to challenge the assessment. The court denied the motion, concluding that petitioner's lease gave him standing to challenge the assessment.

During the relevant tax years, tenant occupied a number of floors pursuant to a 99-year lease in a building owned by Yeshiva University. The lease recites that the property is currently partially exempt from payment of taxes, and provides that if the exempt portion shall, at any time, not be exempt, taxes should be allocated pro rata among those portions of the property not used for tax exempt purposes. the lease also provided that tenant would promptly pay the taxes to landlord upon demand by the landlord, and also gave tenant the right to direct landlord, at tenant's expense, to contest or review all taxes. During the years in question, two other tenants occupied a portion of the premises, totaling less than 8% of the building's space. When tenant brought this proceeding to challenge tax assessments for the years in question, the city moved to dismiss, contending that only the owner ' Yeshiva ' had standing to contest property tax assessments.

In denying the city's motion to dismiss, the court emphasized that tenant bore the obligation to pay the overwhelming proportion of taxes due on the property, and was required to pay the actual assessment. By contrast, Yeshiva had no pecuniary interest in pursuing a challenge to the assessment, and that the city faced no undue administrative burdens from responding to tenant's challenge. As a result, the court concluded that tenant had standing to challenge the assessment.

No Implied Easement Without Deed from Common Grantor

H.S. Farrell, Inc. v. Formica Construction Co., Inc.

NYLJ 6/27/07, p. 29, col. 6

AppDiv, Second Dept

(memorandum opinion)

In an action by landowner to enjoin neighbor from closing a street abutting its land, neighbor appealed from the Supreme Court's judgment ordering removal of obstructions on the street. The Appellate Division modified, holding that landowner had not established that it possessed an implied easement over neighbor's land.

Landowner and neighbor each own land abutting Gales Lane, a private street on Staten Island. Gales Lane is a dead-end street that meets a public highway at one end, but neighbor maintains a fence on that end, blocking access to the public highway, and neighbor uses Gales Lane for the storage of materials. Landowner brought this action to compel removal of the obstructions, contending that landowner holds an implied easement over Gales Lane. Landowner relied on a subdivision map filed in 1847, which depicts landowner's land as abutting Gales Lane, and on a 1971 deed, referring to the map, whereby neighbor acquired title to its parcel from its predecessors. Neighbor contends that it had extinguished any easement by adverse possession because it had excluded landowner from the parcel for a 10-year period. Supreme Court awarded judgment to landowner, concluding that because landowner had received a conveyance with reference to a subdivision map that showed the street, landowner had acquired an implied easement over the street. Neighbor appealed.

In modifying, the Appellate Division emphasized that landowner had not offered any of the deeds in its chain of title, including the 1957 deed by which it acquired title to its parcel. The court noted that landowner had offered no evidence that a common grantor had subdivided the land pursuant to the subdivision map, and indicating that an implied easement would not arise unless the deed conveying land from the common grantor to landowner's predecessor had included language referring to the filed subdivision map. In the absence of such evidence, landowner could not establish existence of an implied easement. The court also rejected neighbor's adverse possession counterclaim, noting that neighbor had not demonstrated exclusive use for the requisite statutory period.

COMMENT

When a grantor conveys property by a deed that references a subdivision map showing a private road abutting the property, courts presume that the grantor intended to convey an easement over the private road to the grantee, and enforce that intention. Thus, in Firsty v. De Thomasis , 177 A.D.2d 839, the court held that a subdivider had created an easement across a private road when the original deed from the subdivider referenced a subdivision map in which the property abutted the private road. Even though the deed did not mention the road explicitly, the court took the facts that the map showed the property abutting the road and that the deed referenced the map to support the presumption that the grantor intended to imply an easement.

To establish the existence of an easement implied from reference to a subdivision map, the dominant landowner must produce the original deed from the common grantor, and the original deed must reference the subdivision map. Thus, in Coccio v. Parisi , 151 A.D.2d 817, the court held that the failure of the dominant owner to produce the deed from the common grantor precluded the finding of an easement. Even though the common grantor's a subdivision map showed a private road abutting the dominant owner's property, and subsequent conveyances of the dominant and servient properties made reference to the map, the lack of the original deed from the common grantor was fatal to dominant owner's easement claim. And in Palma v. Mastroianni , 276 A.D.2d 894, the court rejected an implied easement claim when the original deed from the common grantor did not refer to a subdivision map, even though the common grantor had previously filed the subdivision map with the county clerk. The court noted that the deed described the property in terms of metes and bounds, and made no reference to subdivision map, the abutting private road in question, or any of the other lots on the subdivision map.

An implied easement created by reference to a subdivision map does not include all roads shown on the subdivision map, but will only extend to roads necessary to gain access to a public roadway. In De Rescio v. Jackson , 164 A.D.2d 684, the court held that an implied easement extended only over an abutting road up to the closest private crossroad that would give the dominant landowner the most direct access to a public highway. As a result, the owner of property depicted on the subdivision map as another road was free to close off that other road, denying the dominant landowner any right of way.

Tenant Has Standing to Challenge Tax Assessment

Matter of Greenburger v. Tax Commission

NYLJ 6/26/07, p. 22, col. 1

Supreme Ct., N.Y. Cty

(Schoenfeld, J.)

In a proceeding to review a real property tax assessment, the New York City Tax Commission moved to dismiss, alleging that petitioner was not an aggrieved party, and hence lacked standing to challenge the assessment. The court denied the motion, concluding that petitioner's lease gave him standing to challenge the assessment.

During the relevant tax years, tenant occupied a number of floors pursuant to a 99-year lease in a building owned by Yeshiva University. The lease recites that the property is currently partially exempt from payment of taxes, and provides that if the exempt portion shall, at any time, not be exempt, taxes should be allocated pro rata among those portions of the property not used for tax exempt purposes. the lease also provided that tenant would promptly pay the taxes to landlord upon demand by the landlord, and also gave tenant the right to direct landlord, at tenant's expense, to contest or review all taxes. During the years in question, two other tenants occupied a portion of the premises, totaling less than 8% of the building's space. When tenant brought this proceeding to challenge tax assessments for the years in question, the city moved to dismiss, contending that only the owner ' Yeshiva ' had standing to contest property tax assessments.

In denying the city's motion to dismiss, the court emphasized that tenant bore the obligation to pay the overwhelming proportion of taxes due on the property, and was required to pay the actual assessment. By contrast, Yeshiva had no pecuniary interest in pursuing a challenge to the assessment, and that the city faced no undue administrative burdens from responding to tenant's challenge. As a result, the court concluded that tenant had standing to challenge the assessment.