≡ Menu

How a Driveway Easement Works

A driveway easement is an easement created over a driveway of someone’s land. It gives someone the right of egress and ingress using your land. If you are purchasing property, it’s important to know whether there is an easement over that property you want to buy.

An easement is a real interest created over one’s land, called the servient estate, allowing the owners of another land, called the dominant estate, to use the servient estate’s estate for a particular purpose. Because the easement is a real interest, the easement follows the land. Even if the property is sold and the owners change, the easement stays. This is called an easement appurtenant.

A gross easement, on the other hand, is a mere personal license to use someone’s property for a particular purpose. A gross easement, which is a license, is personal. The death of the easement holder extinguishes the easement.

How an easement is created and extinguished

Most easements are easements appurtenant, which are attached to the land and not to the owner of the land. An easement appurtenant is not extinguished by the death of one landowner. When the owner dies, the new owner acquires the property with or subjected to the easement.

An easement appurtenant is created when such easement is:

  • Conveyed in writing;
  • Subscribed by the person creating the easement; and
  • Burdens the servient estate for the benefit of the dominant estate. Niceforo v. Haeussler, 276 A.D.2d. 949 (2000).

Usually, when disputes arise regarding an easement, the first argument for the defense is that the easement created was a gross easement (or a personal license) and not an easement appurtenant.

Once an easement appurtenant is created, the only way to extinguish it is by abandonment, end of necessity, condemnation, adverse possession, merger, or with the consent of the owner of the dominant estate.

Terminating a New York easement

To terminate a New York easement, we look first into how the easement was created. If the easement was created by agreement, then it can only be extinguished by abandonment, condemnation, adverse possession, merger or with the consent of the owner of the dominant estate. If the easement was created by law due to necessity, there is an additional way to terminate the easement: when the easement is no longer needed.

Abandonment

To terminate an easement, the owner of the dominant estate (the easement holder) should abandon the easement. To prove abandonment, there must be an intention to abandon the easement coupled with an overt act or failure to act. Mere non-use, even if for a long time, does not evidence an intention to abandon the easement.

Condemnation

Condemnation or expropriation is the government’s act of appropriating private property for public use with payment of just compensation. For example, when there is land subject to an easement but the government condemns it in order to build a public road, that easement is extinguished when the government condemns the land.

Adverse possession

Adverse possession occurs when the servient estate owner, the landowner burdened with the easement, blocks the easement in a manner that is exclusive, open and notoriously hostile, preventing the dominant estate owner from using the easement for a continuous period of 10 years. In Spiegel v. Ferraro, 73 N.Y.2d 622 (1989), the Court declared an easement extinguished when the servient estate owner’s tenant erected gates across the easement, exercising exclusive use over the easement for a period of more than 10 years, and the dominant estate owner only demanded the removal of the gates after 10 years. Here, since the period to demand the removal of the gates had lapsed due to the state of limitations, the servient estate owner was able to extinguish the easement through adverse possession.

Merger

Merger occurs when the owner of the servient estate and dominant estate become one and the same. It is akin to a release or consent of the dominant estate owner to extinguish the easement.

Release

Release occurs when the dominant estate owner consents in writing to the extinguishment of the easement.

End of necessity

For easements that were created due to a need, such as a parcel that is landlocked with no access to a public road, when such parcel begins to have access to the public road, the need for such easement terminates and the easement may be extinguished.

Driveway easements in New York

Shared driveway easements are common er in New York and governed by statute, case law, and local municipal zoning requirements. Shared driveway easements are created to allow multiple lots access to the public road by allowing these lots the right to use said land for ingress and egress to and from their property. Although driveway easements normally state the permissible use as egress and ingress, a driveway easement may also be used for parking and recreational purposes for as long as evidence shows that such easement has always been used for such purposes, there is no restricting language in the grant that created the easement, and the grantors had no intention to restrict the use of the driveway. Albright v. Davey, 68 A.D.3d. 1490 (2009).

What you cannot do in an easement

When a driveway easement has been created on your land, you cannot restrict others from using your land, for as long as such use is within the permissible uses recognized by the grant, either expressly or impliedly. Thus, you cannot interfere with your neighbor’s ability to use the easement by planting on it or cutting off your neighbor from using the easement, even if it is your land. Otherwise, you may be liable for damages.

Easements can be a complicated and contentious issue between and among neighbors. It’s important to get the advice of legal counsel before attempting to restrict your neighbor’s use of an easement. Should you need assistance in the evaluation of your case, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.

Details about how driveway easements work

  1. EASEMENT – a non-possessory interest in land that involves a right to USE another’s land.
    1. Affirmative – most easements are affirmative. (right to do something on servient land, i.e. driveway access)
  • Classifying the Easement
    1. Appurtenant – when easement directly benefits the use and enjoyment of a specific parcel of land. (it takes two)
      1. Dominant tenement – benefited land
      2. Servient tenement – burdened land
    2. In gross – When easement confers only a personal/pecuniary advantage that is not related to his use or enjoyment of his land.
      1. ONLY Servient tenement because land is burdened but not benefited.
    3. Transferability
      1. Appurtenant
        1. Dominant tenement passes automatically, regardless of mention in conveyance
        2. Servient tenement passes automatically unless the new owner is a BFP w/o notice.
      2. In gross – not transferable unless it is for commercial purposes
    4. Creation
      1. By Prescription (Adversely possessing)
        1. Open and Notorious use
        2. Adverse / Hostile (w/o servient owners consent – permission defeats)
        3. Continuous and Uninterrupted
        4. For the SOL
          1. Note – Exclusive possession is not required
      2. Implied From Existing Use
        1. Prior to division of a single tract
        2. An apparent and continuous (Open and obvious) use exists on the servient part
        3. That is reasonably necessary for dominant part, AND
        4. Court determines the parties intended for use to continue after division of the land
      3. By Necessity – landlocked setting
        1. Right of way will be implied by necessity if grantor conveys a portion of his land with no way out, except over part of grantors remaining land.
        2. The owner of the servient estate has the right to choose the location of the easement as long as it is reasonable.
      4. Express Grant – for more than 1 year must be in writing that complies w/formal elements of a deed. (Writing, signed by the Servient estate, identify land)
        1. Can also be created by express reservation.
    5. Scope of easement – determined by the terms of the grant or conditions that created it.
      1. Presumed to be of perpetual duration unless stated otherwise.
      2. The use presumed is that of reasonable development of the dominant estate
        1. e. the development which would likely have been contemplated by the parties at the time the easement was created.
      3. Note – The easement may only be used for the benefit of the dominant estate.
      4. Repairs – The dominant estate is responsible for making any necessary repairs to the easement and may enter the servient estate to do so.
      5. Remedy for Exceeding the scope of the easement – Enjoin the use but does NOT terminate the easement
  • Termination of Easement – (7)
    1. Estoppel – servient owner materially changes his position in reasonable reliance on easement holders oral assurances that easement will no longer be enforced. (Dig a swimming pool where easement was after oral promise)
    2. Necessity – expire as soon as the need ends
      1. If the easement attributable to necessity was nonetheless created by express grant, it will not end when the need ends.
    3. Destruction – Involuntary destruction of the structure in which the easement existed.
    4. Condemnation – Condemnation of the servient estate
    5. Releasewritten release given by easement holder to the servient owner
    6. Abandonment – easement holder must demonstrate by physical action of intent to abandon (Leaving alone is not sufficient)
    7. Merger – easement is extinguished when title to easement and title to servient land become vested in the same person. (no auto revival)
    8. Prescription – Adverse continuous interruption of the use for the SOL period.

Easements can be a complicated and contentious issue between and among neighbors. It’s important to get the advice of legal counsel before attempting to restrict your neighbor’s use of an easement. Should you need assistance in the evaluation of your case, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.