Real Property Law

In affirming, the Appellate Division first held that no evidence submitted by the neighbor conclusively established that landowner had not acquired an implied easement. The court then concluded that landowner had demonstrated a likelihood of success on the merits and the prospect of irreparable injury, justifying Supreme Court's grant of a preliminary injunction.

COMMENT

When a landowner's parcel fronts on a public road, a landowner will succeed on an implied easement claim to access a part of his own property not reasonably accessible from that road if landowner can show that a path over the neighboring parcel was in use at the time of severance, and was reasonably necessary for the use and enjoyment of landowner's parcel. Minogue v. Monette, 158 A.D.2d 843, is illustrative. In Minogue, the court held that when a father's will left two contiguous parcels to his two children, his daughter acquired an implied easement to use a driveway on her brother's neighboring parcel because during the father's lifetime, he had used the driveway to reach the garage located on the parcel now owned by the daughter. The court emphasized that the driveway was “reasonably necessary for the fair enjoyment” of the daughter's parcel, because the garage's bays opened onto the driveway. Similarly, in Moody v. Sun, 127 A.D.2d 570, the court directed removal of obstructions placed by a neighbor over the neighbor's portion of a driveway located along the boundary between the landowner's parcel and the neighbor's parcel, concluding that the landowner had an implied easement over the driveway, which provided the only vehicular access to landowner's garage. The court emphasized that the driveway had been in use before the landowner's parcel was separated from his neighbor's parcel, and also concluded use of the driveway was a reasonable necessity, despite the fact that landowner could access the garage by foot without using the portion of driveway on his neighbor's parcel.

By contrast, when a landowner's use of a common driveway is not necessary to obtain access to a garage or other structure, courts have been less willing to find reasonable necessity. Thus, in Mau v. Schusler, 124 A.D 3d 1292, the court held that landowner had not acquired an implied easement to use a driveway turnaround that had been used to provide landowner with easier access to off-street parking. The court emphasized that landowner could park on the property without the turnaround, and also had on-street parking available. And in Abbott v. Herring, 97 A.D.2d 870, the court rejected landowner's easement by necessity claim when landowner had used a driveway only for deliveries, service vehicles and boats. Landowner's and neighbor's parcels were originally one jointly owned tract, and, after severance, the neighbor forbade the landowner from using a driveway. In ruling for the neighbor, the court reasoned that, despite unity and later severance, the easement was not absolutely necessary: although the landowner used the property year-round, she never plowed the driveway during winter; instead, she would park in a garage off the public road and use a walkway to reach her property. Id.

In the absence of use prior to severance, courts will not generally imply an easement by necessity unless, at the time of severance from the neighboring parcel, landowner's parcel became landlocked. In Foti v. Noftsier, 72 A.D.3d 1605, the court went so far as to hold that landowner could not obtain an easement by necessity because, at the time of severance, landowner's parcel was accessible by a navigable waterway. By contrast, when severance does landlock a parcel, landowner is entitled to an easement even if the easement was not in use before severance. A good example is Stock v. Ostrander, 233 A.D.2d 816, where the Appellate Division found an easement by necessity because, after severance, the landowners' parcel was entirely landlocked and could accessed the public road only through the neighbor's land.

City Acquired Title By Adverse Possession
Estate of Clanton v. City of New York
NYLJ 8/25/17, p. 29, col. 1
AppDiv, Second Dept.
(memorandum opinion)

In an estate's action against the city to compel a determination of claims to real property, the city appealed from Supreme Court's grant of summary judgment to the estate declaring that the estate is the sole owner of the disputed property. The Appellate Division reversed and granted summary judgment to the city, holding that the city had acquired title by adverse possession.

The estate purchased the subject real property in 1948. The property is surrounded by lots owned by the city and, for more than 30 years, the city's sanitation department has used the property as a truck parking lot. During that period, the city has paved the property, fenced it in, and installed lighting. In 2007, the estate brought an action for a declaration that it owned the property, and the city counterclaimed, asserting title by adverse possession. Supreme Court awarded title to the estate, holding that the city's acceptance of tax payments from the estate and its predecessors over the years constituted an admission that the city did not occupy the property under a claim of right, thus foreclosing an adverse possession claim. The city appealed.

In reversing, the Appellate Division started by noting that the hostility requirement for adverse possession is designed to provide the true owner with notice of the adverse claim. But the court then noted that hostility is to be presumed when the adverse possession establishes all of the other elements necessary to support an adverse possession claim. In this case, the court concluded that the city had established all of the other elements, and held that mere payment of taxes was insufficient to rebut the presumption of hostility. The court concluded that even if knowledge of payment could be imputed to the city, that knowledge would not be sufficient to defeat an adverse possession claim.

Apartment Building Owner Lacked Standing to Enforce Restrictive Covenant
Fleetwood Chateau Owners Corp. v. Fleetwood Garage Corp.
NYLJ 9/15/17, p. 30, col. 6
AppDiv, Second Dept.
(memorandum opinion)

In an action by owners of an apartment building to enjoin owner of a neighboring parcel from violating a restrictive covenant by operating a garage, the neighbor appealed from Supreme Court's grant of summary judgment to the apartment building owners. The Appellate Division reversed and held that the neighbor was entitled to summary judgment because the apartment building owner lacked standing to enforce the covenant.

In 1924, Farrington, who owned all of the land now in dispute and also (apparently) some surrounding land, sold an undeveloped parcel to Thill, subject to a covenant precluding construction of any non-residential building except a parking garage for the exclusive use of the occupant or occupants of residential buildings on the parcel. The parcel sold to Thill included both parcels currently occupied by the apartment building, and the garage parcel. In 1929, Thill or his successor built an apartment building, and two years later, built a private parking garage on another part of the parcel. The parcel remained in common ownership until 1990, when Hudson, who then owned the entire parcel, subdivided the parcel by selling the apartment building to the current plaintiff. The following year, Hudson sold the remainder of the parcel, which included the garage, to the current defendant. Neither of the deeds mentioned the 1924 covenant. In this action the apartment building owners sought to restrain the garage owner from operating a commercial parking garage on the premises, and Supreme Court awarded summary judgment to the apartment building owners. The garage owner appealed.

In reversing, the Appellate Division held that the apartment building owner lacked standing to enforce the covenant. The court held that the restriction was not part of a common scheme designed to benefit the apartment building parcel. When the restriction was imposed, the two parcels were in common ownership, and burdened by the same restriction. The court concluded that the restriction was designed to benefit Farrington or his other land, if he had any. It was not designed to benefit the land burdened by the restriction. As a result the original restriction was not enforceable as between the two parties in this case.

COMMENT

Purchasers of property within a common development scheme can enforce a deed covenant if the original grantor did not retain a dominant estate at the time the grantor imposed the covenant. In Graham v. Beermunder, 93 A.D.2d 254, the court held that landowners had the right to enforce a restrictive deed covenant where their parcel and that of the burdened landowners were both part of the same general scheme or development plan. In concluding that developer had established a general scheme allowing all landowners to enforce restrictions on house size, the court emphasized the fact that the grantor told purchasers he intended to subject all parcels to the covenant, and noted that the grantor divested himself of any property within the general scheme and did not retain a dominant parcel. Id. at 258, 260. See also Fader v. Taconic Tract Development, 2013 WL 10871922 *1, *7. aff'd, Fader v. Taconic Tract Dev., LLC, 128 A.D.3d 887, 889 (owners within the subdivision entitled to enforce open space requirement because of existence of common scheme; developer did not retain any dominant estate).

A developer of a subdivision who retains land adjacent to the subdivision may not enforce a restrictive covenant placed on the subdivision if evidence establishes that the developer intended the covenant's benefits to run only to other owners within the subdivision. In Haldeman v. Teicholz, 197 A.D.2d 223, 226 , the court found that the developer, owner of a life estate adjacent to the parcels he subdivided, could not enforce the covenant imposed on purchasers within the subdivision because developer had provided expressly that the covenants “are for the benefit of each owner of land in such subdivision.” That language rebutted any presumption that the developer's interest in the retained land conferred standing to enforce the covenant. As a result, the developer could not prevent further subdivision by an owner who owned a parcel within the three-lot subdivision.

Landowner Establishes Likelihood of Success on Implied Easement Claims
XXXX, L.P. v. 363 Prospect Place, LLC
NYLJ 8/4/17, p. 29, col. 6
AppDiv, Second Dept.
(memorandum opinion)

In landowner's action for a judgment that it holds an easement over neighbor's property, neighbor appealed from Supreme Court's grant of a preliminary injunction, and from Supreme Court's denial of neighbor's motion to dismiss the complaint. The Appellate Division affirmed, holding that the evidence proffered by neighbor did not conclusively establish that landowner had no easement by necessity, pre-existing use, or prescription.

Landowner and neighbor own abutting lots in Brooklyn. The two lots originally formed a single parcel with a common driveway. When the lots were separated, a portion of the driveway was located on each of the lots. Landowner acquired its parcel in 1998, and has used the driveway to access a service area and parking area on its premises. In 2012, when neighbor acquired the abutting parcel, it began construction of a residential building. Construction impeded access to a portion of the driveway, and neighbor apparently planned to remove a portion of the driveway to install a yard for residents. Landowner then brought this action to enjoin blockage of the driveway, asserting easements by necessity, pre-existing use, and prescription. Supreme Court granted landowner's motion for a preliminary injunction, and denied neighbor's motion to dismiss. Neighbor appealed.

In affirming, the Appellate Division first held that no evidence submitted by the neighbor conclusively established that landowner had not acquired an implied easement. The court then concluded that landowner had demonstrated a likelihood of success on the merits and the prospect of irreparable injury, justifying Supreme Court's grant of a preliminary injunction.

COMMENT

When a landowner's parcel fronts on a public road, a landowner will succeed on an implied easement claim to access a part of his own property not reasonably accessible from that road if landowner can show that a path over the neighboring parcel was in use at the time of severance, and was reasonably necessary for the use and enjoyment of landowner's parcel. Minogue v. Monette, 158 A.D.2d 843, is illustrative. In Minogue, the court held that when a father's will left two contiguous parcels to his two children, his daughter acquired an implied easement to use a driveway on her brother's neighboring parcel because during the father's lifetime, he had used the driveway to reach the garage located on the parcel now owned by the daughter. The court emphasized that the driveway was “reasonably necessary for the fair enjoyment” of the daughter's parcel, because the garage's bays opened onto the driveway. Similarly, in Moody v. Sun, 127 A.D.2d 570, the court directed removal of obstructions placed by a neighbor over the neighbor's portion of a driveway located along the boundary between the landowner's parcel and the neighbor's parcel, concluding that the landowner had an implied easement over the driveway, which provided the only vehicular access to landowner's garage. The court emphasized that the driveway had been in use before the landowner's parcel was separated from his neighbor's parcel, and also concluded use of the driveway was a reasonable necessity, despite the fact that landowner could access the garage by foot without using the portion of driveway on his neighbor's parcel.

By contrast, when a landowner's use of a common driveway is not necessary to obtain access to a garage or other structure, courts have been less willing to find reasonable necessity. Thus, in Mau v. Schusler, 124 A.D 3d 1292, the court held that landowner had not acquired an implied easement to use a driveway turnaround that had been used to provide landowner with easier access to off-street parking. The court emphasized that landowner could park on the property without the turnaround, and also had on-street parking available. And in Abbott v. Herring, 97 A.D.2d 870, the court rejected landowner's easement by necessity claim when landowner had used a driveway only for deliveries, service vehicles and boats. Landowner's and neighbor's parcels were originally one jointly owned tract, and, after severance, the neighbor forbade the landowner from using a driveway. In ruling for the neighbor, the court reasoned that, despite unity and later severance, the easement was not absolutely necessary: although the landowner used the property year-round, she never plowed the driveway during winter; instead, she would park in a garage off the public road and use a walkway to reach her property. Id.

In the absence of use prior to severance, courts will not generally imply an easement by necessity unless, at the time of severance from the neighboring parcel, landowner's parcel became landlocked. In Foti v. Noftsier, 72 A.D.3d 1605, the court went so far as to hold that landowner could not obtain an easement by necessity because, at the time of severance, landowner's parcel was accessible by a navigable waterway. By contrast, when severance does landlock a parcel, landowner is entitled to an easement even if the easement was not in use before severance. A good example is Stock v. Ostrander, 233 A.D.2d 816, where the Appellate Division found an easement by necessity because, after severance, the landowners' parcel was entirely landlocked and could accessed the public road only through the neighbor's land.

City Acquired Title By Adverse Possession
Estate of Clanton v. City of New York
NYLJ 8/25/17, p. 29, col. 1
AppDiv, Second Dept.
(memorandum opinion)

In an estate's action against the city to compel a determination of claims to real property, the city appealed from Supreme Court's grant of summary judgment to the estate declaring that the estate is the sole owner of the disputed property. The Appellate Division reversed and granted summary judgment to the city, holding that the city had acquired title by adverse possession.

The estate purchased the subject real property in 1948. The property is surrounded by lots owned by the city and, for more than 30 years, the city's sanitation department has used the property as a truck parking lot. During that period, the city has paved the property, fenced it in, and installed lighting. In 2007, the estate brought an action for a declaration that it owned the property, and the city counterclaimed, asserting title by adverse possession. Supreme Court awarded title to the estate, holding that the city's acceptance of tax payments from the estate and its predecessors over the years constituted an admission that the city did not occupy the property under a claim of right, thus foreclosing an adverse possession claim. The city appealed.

In reversing, the Appellate Division started by noting that the hostility requirement for adverse possession is designed to provide the true owner with notice of the adverse claim. But the court then noted that hostility is to be presumed when the adverse possession establishes all of the other elements necessary to support an adverse possession claim. In this case, the court concluded that the city had established all of the other elements, and held that mere payment of taxes was insufficient to rebut the presumption of hostility. The court concluded that even if knowledge of payment could be imputed to the city, that knowledge would not be sufficient to defeat an adverse possession claim.

Apartment Building Owner Lacked Standing to Enforce Restrictive Covenant
Fleetwood Chateau Owners Corp. v. Fleetwood Garage Corp.
NYLJ 9/15/17, p. 30, col. 6
AppDiv, Second Dept.
(memorandum opinion)

In an action by owners of an apartment building to enjoin owner of a neighboring parcel from violating a restrictive covenant by operating a garage, the neighbor appealed from Supreme Court's grant of summary judgment to the apartment building owners. The Appellate Division reversed and held that the neighbor was entitled to summary judgment because the apartment building owner lacked standing to enforce the covenant.

In 1924, Farrington, who owned all of the land now in dispute and also (apparently) some surrounding land, sold an undeveloped parcel to Thill, subject to a covenant precluding construction of any non-residential building except a parking garage for the exclusive use of the occupant or occupants of residential buildings on the parcel. The parcel sold to Thill included both parcels currently occupied by the apartment building, and the garage parcel. In 1929, Thill or his successor built an apartment building, and two years later, built a private parking garage on another part of the parcel. The parcel remained in common ownership until 1990, when Hudson, who then owned the entire parcel, subdivided the parcel by selling the apartment building to the current plaintiff. The following year, Hudson sold the remainder of the parcel, which included the garage, to the current defendant. Neither of the deeds mentioned the 1924 covenant. In this action the apartment building owners sought to restrain the garage owner from operating a commercial parking garage on the premises, and Supreme Court awarded summary judgment to the apartment building owners. The garage owner appealed.

In reversing, the Appellate Division held that the apartment building owner lacked standing to enforce the covenant. The court held that the restriction was not part of a common scheme designed to benefit the apartment building parcel. When the restriction was imposed, the two parcels were in common ownership, and burdened by the same restriction. The court concluded that the restriction was designed to benefit Farrington or his other land, if he had any. It was not designed to benefit the land burdened by the restriction. As a result the original restriction was not enforceable as between the two parties in this case.

COMMENT

Purchasers of property within a common development scheme can enforce a deed covenant if the original grantor did not retain a dominant estate at the time the grantor imposed the covenant. In Graham v. Beermunder, 93 A.D.2d 254, the court held that landowners had the right to enforce a restrictive deed covenant where their parcel and that of the burdened landowners were both part of the same general scheme or development plan. In concluding that developer had established a general scheme allowing all landowners to enforce restrictions on house size, the court emphasized the fact that the grantor told purchasers he intended to subject all parcels to the covenant, and noted that the grantor divested himself of any property within the general scheme and did not retain a dominant parcel. Id. at 258, 260. See also Fader v. Taconic Tract Development, 2013 WL 10871922 *1, *7. aff'd, Fader v. Taconic Tract Dev., LLC, 128 A.D.3d 887, 889 (owners within the subdivision entitled to enforce open space requirement because of existence of common scheme; developer did not retain any dominant estate).

A developer of a subdivision who retains land adjacent to the subdivision may not enforce a restrictive covenant placed on the subdivision if evidence establishes that the developer intended the covenant's benefits to run only to other owners within the subdivision. In Haldeman v. Teicholz, 197 A.D.2d 223, 226 , the court found that the developer, owner of a life estate adjacent to the parcels he subdivided, could not enforce the covenant imposed on purchasers within the subdivision because developer had provided expressly that the covenants “are for the benefit of each owner of land in such subdivision.” That language rebutted any presumption that the developer's interest in the retained land conferred standing to enforce the covenant. As a result, the developer could not prevent further subdivision by an owner who owned a parcel within the three-lot subdivision.