Nicole Zielonka Manges wants everybody in Western New York to learn a little bit more about implied easements today.
From the desk of Michael C. Wild, Esq. PLLC
IMPLIED EASEMENTS. If your neighbor is using part of your property for any reason, you... should read this.
"I’m re-telling a story, with some editorial license, so please don’t rely on this as specific legal advice. You should only rely on legal advice given by an attorney who you hire and pay. I wasn’t hired, or paid, for this anecdote, so please consider it a general discussion.
I recently had a discussion with a potential client, who allowed a neighbor to store firewood on her property about 15 years ago. She asked the neighbor to remove the firewood, and the neighbor responded back that after the passage of so many years, he acquired an implied easement across the client’s land, and would not be removing the firewood.
A beginning point to this conversation is defining an easement, which is a non-possessory interest in land that somebody else owns. Most people encounter easements given by consent, supported by a written instrument recorded with the county clerk, such as easements for utilities like water, electric, sewer or natural gas services. An implied easement is a bit different from one given by consent, because there is no public record of the easement, and no way to define what land is affected by it. Accordingly, a very common way for an implied easement to even become a subject of conversation is for some kind of dispute to arise between neighbors.
With all of that exposition laid out, I can finally define an implied easement. An implied easement arises when the party attempting to assert it can demonstrate to a court by a showing of clear and convincing evidence (that’s a loaded legal term of art… err, lawyer jargon… for another day) that there was (i) a prior unity of title (i.e., prior common ownership of the two parcels of land in issue); (ii) that the claimed easement must have, prior to the separation of ownership, been so long continued and obvious or manifest as to show that it was meant to be permanent (i.e., the purpose of the implied easement began when the properties were under common ownership and were patently obvious to anyone who cared to future buyers); and (iii) that the use of the implied easement area must be necessary for the beneficial enjoyment of the land (necessity is a loaded term here, but I can say with confidence that it’s more than the convenience of the party trying to assert the implied easement). For a more detailed discussion, take a look at Freeman v. Walter, 110 A.D.3d 1312 (2013) – that’s a citation to the New York State’s Appellate Divisions reports, third series, book 110, page 1312, published in 2013.
Let’s take a look at the facts from earlier and compare it with the law. First, we examine the “unity of title,” and it’s not clear, but it probably doesn’t matter. One neighbor owns the land where the wood is stored, and the other does not, and it doesn’t matter if the land was ever commonly owned, because the wood storage only arose after the two pieces of land were not under common ownership. Next, we examine if there is continuous use of the claimed easement prior to the land being subdivided. Here, again, it appears the wood storage did not begin until after the land was no longer commonly owned. Finally, we examine the necessity. The wood storage use was given by permission, for the neighbor’s convenience. There’s no meaningful necessity. The neighbor just doesn’t want to move his wood pile.
At the end of this consultation, I advised the client that the neighbor was likely mistaken, and the more likely nature of the relationship between the neighbors is of licensor and licensee. With the proper notices, the landowner could evict the licensee off the land. Eviction is another topic for another day, though."
The Real Property Tax Law is very clear on this topic: Property taxes are due on the due date without exception. If you own realty, it is your obligation to pay by the due date, even if a bill doesn't come in the mail.
Loathe as I may be to admit it, sometimes celebrity gossip is an effective way to illustrate the value of estate planning. if you pass on without a will in New York State, the legislature provides one for you in the Estates, Powers and Trusts Law (or, as most attorneys refer to it in shorthand, EPTL). If the will that the Assembly and Senate wrote for you isn't consistent with your goals, then come talk to me so I can help you craft an estate plan that is.
FRIENDLY REMINDER from your local Realtor:
Temperatures are increasing rapidly today which means major snow melt. PLEASE check your sump pumps & make sure they're working. If you need the help of plumber or a handyman, message me & I'll hook you up!
Lawyer jokes notwithstanding, winter weather is a good reason to suggest that property owners diligently maintain their property over the winter months. It's a smart idea to keep sidewalks and stairs cleared of snow, and where appropriate use a snow-melter to reduce icy conditions. Your insurance agent will appreciate it almost as much as your guests do.
These kids probably have no idea how lucky they are. It's vogue to suggest that these United States are not exceptional, but that is a fallacy. By virtue of your existence, you are protected from unreasonable searches and seizures, protected from compelled self incrimination, entitled to an attorney to represent you in a criminal case, entitled to confront adverse witnesses, entitled to a public trial and protected from cruel and unusual punishment. Other nations don't necessarily offer those protections, and it's something to think about when you travel abroad.
In these United States, the free speech provisions of the First Amendment to our Constitution protect the individual from being punished by the government for our speech and free expression.
If you travel abroad, the protections that you take for granted, such as the protection against unreasonable searches and seizures, the government not being able to take away your property without compensation, the protection from compelled self incrimination, the right to counsel, the right to confront adverse witnesses, the right to a public trial, the right to a trial by jury, and the protection against cruel and unusual punishment, among others, might not be recognized.
I recently commented on a question in a Q&A forum. This one is about judgments creating liens against realty in New York State.
In general, once the seller delivers a deed at closing in exchange for payment, the business between buyer and seller is complete. But, generalities only go so far, because if there are conditions explicitly provided for on the face of a recorded deed, the seller may reserve some control over a piece of land after closing. Typically, this reservation of control comes in the form of "Covenants, Conditions and Restrictions," or CC&Rs in lawyer jargon.
A common estate planning technique that many people use is to change how title is held in their home, known as a "life estate." In New York State, the grantor transfers the property to a third party, but reserves use and occupancy of the property for the rest of his or her life. There are many great reasons to try such a transfer, but it's not for everyone. Before making any changes to the way title is held in your property, speak with counsel first.
As you get older, your estate planning needs change. For every major change in your life, you should either create or update your plan.
Of course you can sell your home if you still owe on a mortgage. Most mortgages provide for the secured debt to be paid in full at the time of sale. So, if there is sufficient equity to pay off the loan, and clear any other title encumbrances, there is no issue in selling before the mortgage matures.
Is this an exhaustive treatment of mortgages? Absolutely not. Is it something to think about if you're planning on selling your home? Yes.
This particular contractor appears to be the bad apple who spoils the bunch. Beware any contractor who asks for payment in cash. Research public records for money judgments, tax liens and other issues. If the contractor does business as a corporation or LLC and asks for a check written to cash, or to an individual, that's a red flag. And, trust your gut. If something gives you a bad feeling, hire somebody else. Running a business is a tremendously expensive and challenging proposition, so you should give the work to somebody who plays by the rules.