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Agreement Created Only a Temporary License to Use Land, Not an Easement

The Third Department, over a partial dissent, determined plaintiff was granted only a license to use land for agricultural purposes pending repayment of a loan, not an easement.  The two legal concepts were explained:

We recognize that “‘it is often difficult to distinguish between an easement, which is an interest in real property, and a mere license, which implies no such interest, . . . is personal to the holder, is not assignable and is of limited duration'” … . “‘To create an easement by express grant there must be a writing containing plain and direct language evincing the grantor’s intent to create a right in the nature of an easement rather than a revocable license'” … . Aside from the word “grant,” the agreement does not use language typically utilized to convey an interest in land, such as “convey” and “forever” … . Moreover, the agreement expressly speaks to a loan and includes a clause purporting to authorize plaintiff to foreclose upon the property for nonpayment. Where, as here, there is no express time limitation for the right to use the property, that right should be deemed a license, and not an easement …, particularly given that plaintiff drafted the agreement (see 22 NY Jur 2d, Contracts § 257). Both the language of the agreement and the loan context lead us to conclude, as did Supreme Court, that Buchanan merely conferred a license upon plaintiff to use the property pending repayment. Kampfer v DaCorsi, 2015 NY Slip Op 01843, 3rd Dept 3-5-15

 

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