- Specificity is Required to Assert an Easement
- September 12, 2016 | Author: E. Christopher Murray
- Law Firm: Ruskin Moscou Faltischek, P.C. - Uniondale Office
- The New York Supreme Court, Suffolk County, recently enforced the requirement that in order to assert a claim for an easement by prescription or adverse possession you must set forth the specific location and dimensions of the purported easement. In MJK Building Corp. v. Fayland Realty, Inc., Index No. 15-607643, Supreme Court Justice Peter Mayer dismissed at the pleading stage a Complaint which sought an easement to permit cars to transverse a Speedway service station and convenience store so as to gain access the plaintiff’s place of business. The plaintiff alleged the usual elements of an easement, such as open and notorious use over a ten year period, and asserted that the easement was to the west of its property.
However, the Court dismissed the claim because the plaintiff did not specify exactly where the purported easement was located. The Court held that without specifying the exact location and dimension of the purported easement a claim to an easement could not be sustained as a matter of law.
The decision in MJK Building is consistent with a prior Appellate Division holding in Almeida v. Wells, 74 A.D.3d 1256 (2d Dep’t 2010). In Alemeida, claims for an easement by prescription, implication or necessity over a portion of a “paper street” that the plaintiff was using as a driveway were denied because the Appellate Division found that the plaintiff did not specifically set forth the portion of the contested area covered by the purported easement. The Appellate Division held that the general description in a survey was not enough.
Accordingly, if you want to assert an easement over a neighboring piece of property because you have been utilizing it to access your parcel, you must be careful to set forth the specific dimension and location where the easement is located. In addition, you should establish proof showing that the specific locations had been used by photographs or videos. Simply alleging that your customers have been using a portion of your neighbor’s property to access your business is not enough. Specificity is required or otherwise you will be out of court before your case even starts.