PLAINTIFF WAS NOT ENTITLED TO AN EASEMENT BY IMPLICATION FOR A DRIVEWAY LEADING TO PLAINTIFF’S GARAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment finding an easement by implication for a driveway leading to a garage on plaintiff’s property. The lot with the driveway, Lot B, and plaintiff’s lot, Lot A, were previously owned by the same party who conveyed Lot A to plaintiff and Lot B to defendant, plaintiff’s sister-in-law:

“An easement may be implied from pre-existing use upon severance of title when three elements are shown: ‘(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary to the beneficial enjoyment of the land retained'” … . “Stated another way, an 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” … . An implied easement must be “a reasonable necessity, rather than a mere convenience” … .

… The plaintiff did not establish that the use of the driveway on Lot B was a reasonable necessity to the beneficial use of the land and not a mere convenience. It is undisputed that Lot A is not landlocked and that the plaintiff can access Lot A without using the driveway on Lot B. … [T]he home situated on Lot A is rented to one set of tenants, and the parking spaces in the garage are rented to another set of tenants. Since access to off-street parking is a mere convenience, the plaintiff cannot establish that the easement is a reasonable necessity. Bonadio v Bonadio, 2021 NY Slip Op 06830, Second Dept 12-8-21