A situation commonly arising in the course of a land use and real estate practitioner’s work sounds much like the following: Smith owns Greenacre, a large parcel of land that she subdivides and then sells piecemeal. Jones, looking for somewhere nice to build his home, purchases one of the lots, which just happens to be landlocked and inaccessible from the local roads. Not being of substantial means, and his helicopter badly needing repairs, Jones must obtain an easement, or right to use others’ land for some purpose (in this circumstance, as a right of way). If, for some reason, our unlucky protagonist is unable to negotiate an easement with one of his neighbors so that his lot has overland access to a public right of way, his primary recourse would be to commence an action seeking a declaration from a court that an easement for such use is necessary and that he be permitted access.
To prevail on this claim, the law in New York has traditionally required that Jones establish, by clear and convincing evidence, that his lot was part of a greater unified parcel that became landlocked upon severance, or division, such that an easement was absolutely necessary at the time of severance. In other words, under the traditional framework, the claimed necessity must have always existed – and not because of some action taken by the party seeking the easement – or an easement by necessity was not the appropriate remedy.
This high standard is understandably difficult to meet and has resulted in application of the doctrine in limited circumstances. As a result, some courts have begun to weaken the originally stringent requirement that the necessity for the easement exist at the time of severance, and have replaced it with a more attainable standard that, unfortunately, has all but eliminated the certainty associated with the traditional rule.
Over the years, a line of cases has developed whereby claimants have prevailed in seeking an easement by necessity despite there being no strict necessity for it at the time of severance. Illustrative of this is Mobile Motivations, Inc. v. Lenches, 809 N.Y.S.2d 253 (3d Dept. 2006), where the Appellate Division for the Third Department cited the significantly broadened version of the rule in a decision affirming the lower court’s finding that an easement by necessity had been established. The plaintiff in Lenches sought to enjoin the use of its driveway by the defendant, who was a neighbor with a landlocked parcel.
Interestingly, the defendant’s lot had already been accessible for years pursuant to an express easement that had been deeded to him by the owner of a separate adjacent parcel. The necessity for the new easement – which was absolute and not occasioned by any conduct of the defendant – only arose when a septic system was constructed in the vicinity of the former easement, thereby rendering it unusable. The Appellate Division held that, regardless of the fact that there had been a deeded right-of-way since the time of severance, and hence no necessity at that time, the subsequent alterations that destroyed its utility resulted in necessity sufficient to warrant invocation of the doctrine.
As this decision highlights, there are plenty of sound reasons for New York courts to expand the scope and application of the doctrine of easements by necessity, for without such an expansion of the rule the Lenches defendant would have been left without any means by which to access his property, a result not favored by the law. However, this apparent circumvention of the traditional rule’s requirement of strict necessity at the time of severance was accomplished without comment or further explanation by the court, and practitioners are left with no clear indication that the doctrine would be similarly applied in future cases.
Given the current state of legal limbo on this issue, it would be highly beneficial to practitioners for the courts to finally retire the requirement of strict necessity at the time of severance in favor of the broader, more inclusive rule that strict necessity arising at any time – so long as not self-created – is sufficient to justify application of the doctrine. In doing so, the interests of justice would be better served, predictability for practitioners and their clients would be dramatically enhanced, and the law of easements would be updated to address the fast-paced changes widespread development is bringing to the system.
The Land Use, Zoning & Development attorneys at Cuddy & Feder are available to address any questions you may have regarding easement by necessity or landlocked property rights in New York State.