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MEMORANDUM

TO: THE PARTNER

FROM: ASSOCIATE

DATE: OCTOBER 6, 2010

RE: JOHN DOE EASEMENT

INTRODUCTION

Our client John Doe has expanded his family business on to a piece of property without access to the local roadway. At the time of his purchase, the property accessed the road via a gravel easement across property owned by Arnold Robinson. Robinson subsequently sold the property to Zoey Baum. Baum contends that Doe has no legal right to an easement across her property and has erected a fence to prevent its use.

ISSUE

Would Doe be success in an action forcing Baum to continue allowing him access to the roadway via the easement on her property?

SHORT ANSWER

No. As Baum contends, there is no recorded easement. New York Real Estate law provides that if the conveyance was not duly recorded at the time of its approval, the easement does not pass on to subsequent owners of the property.

FACTS

Doe inherited his family business, Doe’s Barbeque, in Otego, New York. In 2008, the company began experiencing rapid growth in online sales. Doe determined a need to build a sauce production and packaging facility. The restaurant location was too small to accommodate the new facility. Doe’s neighbors, the Millers, owned a vacant lot adjacent to Doe’s property. The Millers’ vacant lot did not have roadway access. The parcel between tJane Baumhe vacant lot and the roadway was sold to Arnold Robinson in 1998 and in the intervening time the Millers had been using a gravel road on the Robinson property to access the lot. The Millers had properly obtained the right-of-way from Robinson. Robinson had a fruit stand and home on the property.

Doe purchased the vacant lot from the Millers in April, 2008. Construction of the new facility began immediately with continued access via the gravel road across the Robinson property. In August, 2008, Robinson decided to sell the property and in September, 2008, prospective buyer Zoey Baum visited the property on two consecutive days. Baum witnessed construction traffic using the gravel road, but did not inquire about it. She assumed it was to remove Robinson’s fruit stand.

Construction was completed and the plant opened in October, 2008. In May, 2009, Baum visited the property. She was distraught over the noise and dust of the traffic using the gravel road. Baum then had a fence constructed to restrict access to her property and prevent usage of the road. Doe approached Miller and told her he had an easement for the road and asked her to reopen the road. Baum contended that no right-of-way was noted on her need, nor had it shown up in her property records search prior to purchasing the land. Miller conducted her property records search in Delaware County, the county where the easement would need to have been recorded. Doe seeks to force the removal of the fence and enjoin Baum from future attempts to prevent access to his property.

DISCUSSION

An examination of the property records in Delaware County indicates that Baum is correct and no easement for the Baum property was recorded by previous owners’ Millers and Robinson. New York Real Property Law Section 291 states, in part: “A conveyance of real property…may be recorded in the office of the clerk of the county where such real property is situated…” as such, if the Millers and Robinson filed the notice of the right-of-way with their local county clerk, the evidence of the easement would be found in the county clerk’s office. Since the easement were not recorded, then per the provisions of the same section, “Every such conveyance not recorded is void…” The lack of filing of the conveyance may be enough, on its merits, to deny any claim that Doe might have to the easement. If the lack of filing is not sufficient grounds to deny Doe’s claim, the court may be inclined to review precedents in the case. Several precedents rely on the facts of the case and what the purchaser could reasonably have observed prior to purchase of the property. The courts have held that the onus is on the purchaser if there is a reason to believe that prior rights might exist. However, if Baum can successfully argue that she had no reason to believe an easement existed, the court is likely to find in her favor.

1. Recording of the easement

As noted previously, New York Real Property Law Section 921 provides that any conveyance may be recorded with the clerk of the county where the property is located. The law does not require that a notation about the conveyance be recorded on Baum’s deed. In fact, in Clements v. Schultz 200 A.D. 2d 11, 612 N.Y.S. 2d at 726 (1997) the court held that whether the easement is enforceable against the defendant depends on whether they had constructive notice by virtue of the statutes or by the “visible and obvious” nature of the easement. If the easement had been recorded as provided for by the law, then according to the precedent set by Clements v. Schultz, Baum had constructive notice of the easement and the court should rightly rule in Doe’s favor. However, as no evidence exists that the easement was filed, the court could choose to apply the later portion of New York Real Property Law Section 921 which reads, in part, “Every such conveyance not is void as against any person who subsequently purchases…” the property. Baum could make a strong argument that because the easement was not recorded with the proper authorities it has been voided.

In Clements v. Schultz, the court did not rule in the legality of the easement because neither side presented the facts of the case regarding the purchaser’s foreknowledge of the easement. Specifically, the court writes that the “facts necessary to decide whether it is enforceable against the defendants are not ascertainable from this record.” Using the precedent set in Pallone et al. v. New York Tel. Co., 34 A.D. 2d 1091, 312N.Y.S. 2d at 660 (1970), the court held that it must be determined if Baum had “either actual or constructive notice of plaintiff’s rights” with regard to the road.

It could be argued that Baum had constructive notice of the easement via her own observation of the use of the road during her pre-purchase visit to the property. Baum witnessed the use of the easement—commercial vehicles having uncontested ingress and egress—in September, 2008, prior to purchase of Robinson’s parcel. Baum failed to question the specific nature of the purpose of the commercial vehicles in question, although the onus for doing so was hers. However, after making the observation, she conducted an examination of property transfer records to determine if an easement existed. The court might find that this did, in fact, meet the onus placed on her as a potential purchaser and therefore reject Doe’s claim.

2. Constructive Notice

Absent the recording of the easement, there is still legal precedent which may provide support for the Doe case. In Pallone et al. v. New York Tel. Co., 34 A.D. 2d 1091, 312N.Y.S. 2d at 660 (1970), the plaintiffs alleged the wrongful relocation of telephone poles, but the court observed “where there is open and visible use of property by a third person, a purchaser is put on notice of the possible existence of prior rights.” The appellate court’s holding in Russell v. Perrone, 301 A.D. 2d 835, 754 N.Y.S. 2d at 403 (2003), places the onus on the purchaser in these cases. “[When] a purchaser has knowledge of any fact sufficient to put him on inquiry as to the existence of some right or title in conflict with that which he is about to purchase, he is presumed…to have made the inquiry and ascertained the extent of such prior right.”

It is obvious that Baum made note of the trucks using the gravel road on her pre-purchase visit to the property. Furthermore, she was concerned enough about the status of the property to conduct a property records search. From this, it seems likely that the court will conclude that she had prior constructive notice. However, the court may conclude that Baum’s stated belief that the construction vehicles were there to remove the former owner’s fruit stand taken together with her property records search is due diligence on the part of the defendant. Furthermore, in Terwiller v. Van Steenburg 33 A.D. 3d 1111, 823 N.Y.S. 2d at 339 (2006), the court held that the nature of the easement must be determined using the original language of the conveyance. The court wrote: “Moreover, ‘[t]he extent and nature of an easement must be determined by the language contained in the grant’…”

Baum may successfully argue that her “constructive notice” of the easement pertained only to construction vehicles, not to the commercial vehicles and employees of the sauce factory using her property to access the Doe parcel. In the absence of the original language of the easement, the defendant may successfully argue that the agreement between Robinson and the Millers never extended to the volume of traffic that Doe requires, making his claim an attempt to unilaterally extend the terms of the right-of way.

CONCLUSION

Doe’s action will likely fail. While Baum may have had constructive notice of the easement via her observation of the construction traffic, the increased nature of the traffic to the Doe parcel by virtue of its development as an industrial property as well as the lack of filing of the conveyance are factors in Baum’s favor. The precedents in these cases have generally held for the plaintiff; however, sufficient question with regard to the outcome and the likelihood of the case facing several appeals make it clear that Doe’s success is not guaranteed.