Criteria for Implied Easement, Express Easement, Easement by Necessity and Prescriptive Easement Explained

In considering whether a turnaround area was the subject of an easement, the Fourth Department found that the criteria for an implied easement, express easement, and easement by necessity were not met, but a question of fact about the existence of an easement by prescription had been raised.  The court described the criteria for each:

…”[A] grantee claiming an easement implied by existing use must establish: (1) a unity and subsequent severance of title with respect to the relevant parcels; (2) that during the period of unity of title, the owner established a use in which one part of the land was subordinated to another; (3) that such use established by the owner was so continuous, obvious, and manifest that it indicated that it was meant to be permanent; and (4) that such use affects the value of the estate conveyed and that its continuation is necessary to the reasonable beneficial enjoyment of the estate conveyed” … . “Stated another way, [a]n implied easement will arise “upon severance of ownership when, during the unity of title, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another part, which servitude at the time of severance is in use and is reasonably necessary for the fair enjoyment of the other part of the estate” ‘ ” … . “Implied easements are not favored by the law and the burden of proof rests with [plaintiffs] to prove such entitlement by clear and convincing evidence”… . …

With respect to the … cause of action… for an express easement… we note that Real Property Law § 240 (3) provides in relevant part that “[e]very instrument creating [or] transferring . . . an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.” “The intent’ to which the statute refers is the objective intent of the parties as manifested by the language of the deed; unless the deed is ambiguous, evidence of unexpressed, subjective intentions of the parties is irrelevant” … . We conclude that defendants met their burden of establishing that the access easement in the deed to defendants from the owner of what was formerly the common properties did not grant to that owner express permission to use the turnaround … . …

With respect to the … cause of action, seeking an order determining that plaintiffs have an easement by necessity with respect to the turnaround, we note that “[t]he party asserting an easement by necessity bears the burden of establishing by clear and convincing evidence . . . that there was a unity and subsequent separation of title, and [ ] that at the time of severance an easement over [the servient estate’s] property was absolutely necessary’ . . . Significantly, the necessity must exist in fact and not as a mere convenience’ . . . and must be indispensable to the reasonable use for the adjacent property”… . * * *

To establish a prescriptive easement, plaintiffs must establish by clear and convincing evidence that the use of the turnaround was” adverse, open and notorious, continuous and uninterrupted for the prescriptive period’ ” of 10 years … . The elements of a claim for an easement by prescription are similar to those of a claim for adverse possession, except that demonstration of exclusivity is not essential to a claim for easement by prescription … . Thus, to establish an easement by prescription, plaintiffs must establish by clear and convincing evidence possession that was hostile and under a claim of right; actual; open and notorious; and continuous for the required period … . Mau v Schusler, 2015 NY Slip Op 00052, 4th Dept 1-2-15