Monday, February 24, 2014

Your Property Has No Access to a Public Highway or Street - What to do...?

You just bought your dream summer home right after the completion of a subdivision of an old grand estate. You knocked down some walls to modernize the place, put in a hefty amount of trees and hedges for privacy, and even replaced the exterior wooden shingles. After leaving the city in rush hour and spending hours sitting in traffic, you drive up to your home to discover your driveway has been replaced with a vegetable garden enclosed by monuments. Your lawyer informs you that the survey of the property clearly shows that the driveway is outside of your boundary line and reminds you that you decided to cheap out on Title Insurance (no Fee or Owner’s policy). There is no way the insurance company would ever provide coverage.

Ultimately, you decide that your next course of action is to approach the neighbor who planted the vegetable garden with freshly baked cookies and pray on sympathy to access the street from your house. Remember, people are quite possessive of their property and don't like to share especially when they pay taxes on it, right? Guess what. The law offers you a solution for this problem called an Easement by Necessity. This legal right can free the landlocked property owner and give them the access that they desperately need to the street regardless of the neighbor's gleaming personality.  

So, regardless of your neighbor, you can still get from your car to your house. An Easement means a right to use someone else's land for a specific purpose and the word Necessity means that the right that you seek is indispensable. So, the legal solution says exactly what you, the homeowner needs; a right to cross over someone else's property because it’s an indispensable need to use one's own property. And it gets better. While an Easement is typically something bought and sold as it limits the property owner's right to their own property, an Easement by Necessity is granted by a Court in what is called a Declaratory Judgment Action, wherein the Court declares a right of a party. In New York, this action would be brought pursuant to a statute called the Real Property Actions and Proceedings Law at Article 15, which deals with claims to real property. Other States have similar laws on this topic, it is important to check your local State's laws and regulations with a qualified attorney before making any claims about any rights that you may have.

In New York, a claim similar to this one was just addressed by our Appellate Division, Second Department, in a case called Faviola, LLC v. Patel. Therein, the Appellate Court explained that a property owner who seeks an Easement by Necessity must establish the following to prove their case: "there was a unity and subsequent separation of title, and that at the time of severance, an easement over the servient estate was absolutely necessary to obtain access to the party's land". In English, this means your little property was once part of the property contained within the estate, but that when the properties were divided, the only way to get to your property was through the property that remained part of the mansion and was not subdivided away with yours. In Faviola, the Court made clear that you will only get this Easement by Necessity if the right-of-way was absolutely necessary and "not a mere convenience" to you. 

So, the law understands your plight and levels the playing field between you and your neighbor.