Legal Memorandum: An Easement in NY

Issue: What is required to create a valid easement under New York law?

Area of Law: Real Estate Law
Keywords: Valid easement; An express or prescriptive easement; Permanent interest in land
Jurisdiction: New York
Cited Cases: 143 A.D.2d 898; 43 A.D.2d 966; 670 N.Y.S.2d 907; 352 N.Y.S.2d 656; 533 N.Y.S.2d 566; 541 N.Y.S.2d 119; 150 A.D.2d 533
Cited Statutes: 49 N.Y.Jur.2d §§ 8B13
Date: 12/01/2000

In New York, an “easement”[1] is a permanent interest in land that is usually created by grant.  Millbrook Hunt, Inc. v. Smith, 249 A.D.2d 281, 670 N.Y.S.2d 907, 908-09 (2d Dep’t 1998).  An easement is distinguished from a mere license, which is a privilege to act on the land of another but is not a property interest.  Id., 670 N.Y.S.2d at 909.  See Manhasset Bay Assocs. v. Town of N. Hempstead, 150 A.D.2d 533, 541 N.Y.S.2d 119, 121 (2d Dep’t 1989) (holding that because service contracts did not convey an interest in the land they did not create an express or prescriptive easement); Stilbell Realty Corp. v. Cullen, 43 A.D.2d 966, 352 N.Y.S.2d 656, 658 (2d Dep’t 1974) (“an easement can be created only by one who has title to or an estate in the servient tenement”).  In determining whether an easement exists, a court will look to the nature of the property right, Millbrook Hunt, 670 N.Y.S.2d at 908, and the intent of the parties, Sordi v. Adenbaum, 143 A.D.2d 898, 533 N.Y.S.2d 566, 567 (2d Dep’t 1988); merely labeling a property interest an “easement” does not make it an easement.  Millbrook Hunt, 670 N.Y.S.2d at 908.  Thus, if a property owner has conveyed a permanent property interest in a particular tract of land, such as the right to use the land for fox hunting, id. at 909, the owner […]

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