Not So Neighborly: What New York Practitioners Can Learn from Driveway and Parking Lot Disputes in Conwell Props., Inc. v. DAG Rte. Six, LLC and Bolognese v. Bantis

Julia Bryant

Introduction

Have you ever used your neighbor’s driveway, or the next-door property owner’s parking spaces? Perhaps you have a friendly, mutual agreement to use each other’s properties, or maybe one party is unaware of the habit—or just doesn’t bother to say anything. Well, maybe a different neighbor moves in, or maybe your neighbor decides that he or she doesn’t want you taking advantage of their property any longer. Suddenly, a noncontentious neighborly arrangement has turned sour, and even worse, it has made its way into the courtroom. As it turns out, driveway and parking lot easement disputes can be very complicated. Luckily, as recent cases Conwell Props., Inc. v. DAG Rte. Six, LLC and Bolognese v. Bantis show, these disputes can be fairly decided by looking at all the facts involved.

“Easements” Defined

According to Black’s Law Dictionary, an easement is “an interest in land owned by another person, consisting in the right to use or control the land, . . . for a specific limited purpose.”¹ Crossing over someone else’s property to access a public road is an example of an easement.² Easements are created between a dominant estate, the land benefiting from the easement, and a servient estate, the land being burdened by the easement.³ In other words, a person who crosses his or her neighbor’s property to access the public road lives on the dominant estate, because he or she is benefitting from the easement, and the neighbor’s property is the servient estate because it is being used for, or being burdened by, the easement. Easements can be created through agreement, by which the owners of the dominant and servient estates “create mutual easements for the benefit of each other’s lands.”⁴ Easements may be made through express grant, which is usually conveyed through a written will or deed.⁵ In some situations, parties may create an easement because one party has a need to cross over the other’s property, which is called an easement of necessity.⁶ For example, an easement of necessity may arise when one party’s access to a public road is cut off by another party’s property, and the only way to access the road is to cross the property.⁷ Easements are not always created by obtaining permission from the servient estate, however. A party may create a prescriptive easement by using another’s property in an open, adverse, and continuous way over a statutory period.⁸ The recent activity involving easement disputes in New York courts can provide a good opportunity for practitioners to stay updated on how the courts are deciding these matters, and how they should approach preparing their own cases accordingly.

Express Easements and Easements by Necessity: Conwell Props., Inc. v. DAG Rte. Six, LLC

An easement granted may be disputed if the servient property is sold to a new owner and that owner does not want the easement to be used. This issue arose in Conwell Props., Inc. v. DAG Rte. Six, LLC, a Second Department case from 2022.⁹

A.   Facts of the Case and Procedural History

Though this matter was decided recently, the facts trace back to nearly fifty years earlier in 1974.¹⁰ Commercial company Mapac owned and divided real property in Putnam County into two lots (“Lot 1” and “Lot 2”).¹¹ In 1974, Mapac sold Lot 1 to Plaintiff, who used the property to build a commercial building, and kept Lot 2 for itself.¹² One year later, Mapac and Plaintiff entered into a written, though never recorded, agreement which gave Plaintiff access to Lot 1 through a driveway located on Lot 2; this agreement made Lot 1, Plaintiff’s property, the dominant estate and Lot 2, Mapac’s property, the servient estate.¹³ In 2016, Defendant purchased Lot 2 from Mapac.¹⁴ Two years later, Defendant’s attorney informed Plaintiff via letter that Defendant would be installing barriers on the property line because Plaintiff’s patrons were using Defendant’s parking lot.¹⁵ Promptly thereafter, Plaintiff commenced an action in Putnam County Supreme Court to enforce the agreement made originally with Mapac because the barriers would obstruct Plaintiff’s use of the driveway.¹⁶ Defendant filed counterclaims alleging nuisance and trespassing in its answer.¹⁷ Plaintiff then moved for summary judgment on the complaint, asserting that Defendant had notice of the easement, that Plaintiff is entitled to easement by necessity, and that Defendant’s counterclaims should be dismissed.¹⁸ Defendant opposed and cross-moved for summary judgment to dismiss Plaintiff’s claim to easement by necessity.¹⁹ In 2019, the Supreme Court granted Plaintiff’s motion for summary judgment, holding that Plaintiff was entitled to the terms of the agreement and thereby entitled to an easement by necessity.²⁰ Finding that Defendant had constructive notice of the existence of the easement, the court denied Defendant’s motions for summary judgment, but also denied Plaintiff’s motions declaring the scope of the easement and dismissing Defendant’s counterclaims.²¹ Defendant appealed, and Plaintiff also cross-appealed.²²

B.    The Appellate Decision

The Second Department held that Plaintiff was entitled to the rights agreed upon with the original owner, even though the agreement itself was unrecorded.²³ The Court looked to Real Property Law § 291 and case law to determine that although “a good faith purchaser for value is not bound by an easement [that] is not properly recorded prior to the purchase,” the purchaser cannot claim “good faith status” if he or she had actual or constructive notice of the easement.²⁴ Constructive notice is established where there is open and visible use of property by a third person.²⁵ If the purchaser does not inquire about the “defect,” it is assumed that the purchaser had knowledge of it.²⁶

The Court affirmed the decisions of the lower court on the summary judgment motions.²⁷ Because Plaintiff used the driveway openly and visibly, the Court reasoned that Defendant had constructive notice of the easement.²⁸ Therefore, Defendant could not claim to be a good faith purchaser bound by an improperly recorded easement and thus, Plaintiff was entitled to the easement by necessity within the terms of the agreement.²⁹ However, both the Supreme Court and Second Department denied Plaintiff’s motion to declare the scope of the easement because Plaintiff failed to establish it in the language of the written agreement.³⁰ The Court also denied Plaintiff’s motion for summary judgment dismissing Defendant’s nuisance and trespass counterclaims, as Plaintiff could not establish a right to use Defendant’s parking lot or spots, nor eliminate “all triable issues of fact” as to whether Plaintiff’s use of these spaces constituted a nuisance.³¹

Prescriptive Easements: Bolognese v. Bantis

The Second Department faced another easement dispute a few months after deciding Conwell, though the easement Plaintiffs alleged existed in Bolognese v. Bantis was one created by prescription.³²

A.   Facts of the Case and Procedural History

Since 1991, Plaintiffs and Defendants owned adjoining properties in Kings County, New York with a seventeen-foot-wide driveway located between.³³ The boundary distinguishing each property ran through the entire length of the driveway, leaving seven feet of width on Plaintiff’s side and ten feet of width on Defendant’s side.³⁴ Plaintiffs routinely drove over part of Defendants’ driveway to enter and exit the garage and often parked some of their vehicles on Defendants’ side of the driveway.³⁵ However, the deeds and title documents for the properties did not contain any written easements.³⁶ Plaintiffs also erected a retractable, rolling fence that encroached about five inches onto Defendants’ portion of the driveway.³⁷ A dispute over the use of the driveway ensued between the neighbors and Plaintiffs commenced the instant action in 2017.³⁸ Plaintiffs sought a judgment declaring they established a prescriptive easement over Defendant’s driveway for the purpose of using their own garage.³⁹ Defendants filed a counterclaim to compel Plaintiffs to remove the rolling fence, to which Plaintiffs responded by asserting their ownership over the five-inch strip through adverse possession.⁴⁰ Defendants cross-moved for summary judgment declaring that Plaintiffs did not have a prescriptive easement or easement by necessity over Defendants’ portion of the driveway and neither did Plaintiffs own the five-inch strip of driveway.⁴¹

The Supreme Court denied Plaintiffs’ motion for summary judgment declaring that they had a prescriptive easement over Defendants’ driveway and that they owned the five-inch strip by adverse possession.⁴² The court granted Defendants’ motions for summary judgment, but denied Defendants’ cross-motion that Plaintiffs did not have an easement by necessity over the driveway.⁴³ Plaintiffs appealed and Defendants cross-appealed.⁴⁴

B.    The Appellate Decision

The Second Department affirmed the decisions of the lower court on all but one issue.⁴⁵ First, the Court held that Plaintiffs did not own the five-inch strip of Defendants’ driveway by adverse possession.⁴⁶ Given that the events of the case began in 1991, the Court looked to the law in New York Real Property Actions and Proceedings Law Article 5 as it existed prior to the 2008 amendments; the prior law stated that “‘in order to establish a claim to property by adverse possession, a claimant must prove . . . that possession of the property was (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period.’”⁴⁷ Also, the possessor must establish that the disputed property was either “usually cultivated or improved” or “protected by a substantial enclosure” where the adverse possession is not documented in a written instrument.⁴⁸ The Court reasoned that Plaintiffs’ fence was not a “substantial enclosure” and the five-inch strip was not “cultivated” nor “improved,” compelling Plaintiffs to remove the fence from the strip.⁴⁹

Second, the Second Department agreed with the lower court that Plaintiffs did not have a prescriptive easement over Defendants’ driveway.⁵⁰ To have created a prescriptive easement Plaintiffs must have had used the property adversely, openly and notoriously, continuously, and uninterrupted for 10 years.⁵¹ Notably, the element of hostile or adverse use will not be found “where use of the disputed property was ‘permitted as a matter of [willing accord and] neighborly accommodation.’”⁵² Defendants testified, and Plaintiffs even corroborated, that they permitted Plaintiffs to use their driveway out of their intention to be “good, accommodating neighbors.”⁵³ Because Plaintiffs failed to satisfy their burden of raising a triable issue of fact to dispute this, the Court upheld the lower court’s decision to deny Plaintiffs’ motion establishing a prescriptive easement as well as Defendants’ cross-motion arguing the opposite.⁵⁴

However, the Second Department disagreed with the Supreme Court’s decision to deny Defendants’ cross-motion declaring that Plaintiffs did not have an easement by necessity over the driveway.⁵⁵ Case law holds that an easement by necessity is one that was absolutely necessary at the time of severance of the property.⁵⁶ “Significantly, the necessity must exist in fact and not as a mere convenience and must be indispensable to the reasonable use for the adjacent property.”⁵⁷ The Supreme Court erroneously decided this issue on the knowledge that Plaintiffs could not drive their vehicles in and out of their garage without driving onto Defendants’ driveway, because although that “claimed necessity” existed in 1991, it did not exist in 1925 at the time of the severance.⁵⁸ Rather, the need for Plaintiffs to drive onto Defendants’ property is one of convenience.⁵⁹

Conclusion

It is worthwhile to note that both facts and perception are incredibly necessary for courts to consider when deciding easement disputes. Establishing the timeline and sequence of events in easement disputes is important because certain elements, such as those that rely on time and continuity, are required to create an easement. Knowing the date of severance was critical to part of the decision-making in Bolognese. Also, what third parties perceive to be true is important because elements such as openness and visibility may need to be established when determining if an easement exists, as was the case in Conwell. There are rules that need to be followed by property owners when creating an easement as well as those that need to be followed by courts when deciding to uphold an easement. However, one thing that practitioners should take away from recent easement disputes is to solidify the fact theory of their case, because the existence of one detail could change the entire decision of the court.

1. Easement, Black's Law Dictionary (11th ed. 2019).

2. Id.

3. 49 N.Y. Jur. Easements and Licenses in Real Property § 14 (2).

4. 49 N.Y. Jur. 2d Easements § 35.

5. 49 N.Y. Jur. 2d Easements § 24.

6. 49 N.Y. Jur. 2d Easements § 84.

7. Id.

8. “Prescriptive Easement,” Easement, Black's Law Dictionary (11th ed. 2019).

9. Conwell Props., Inc. v. DAG Rte. Six, LLC, 210 A.D.3d 1051, 181 N.Y.S.3d 95 (2d Dep’t 2022).

10. Id at 1052.

11. Id.

12. Id.

13. Id at 1052-3.

14. Id at 1053.

15. Id.

16. Id.

17. Id.

18. Id.

19. Id.

20. Cornwell Props. Inc., 210 A.D.3d 1051, 1053.

21. Id.

22. Id.

23. Id at 1054.

24. Id.

25. Id.

26. Id.

27. Id.

28. Id.

29. Id.

30. Id (quoting Hopper v. Friery, 260 A.D.2d 964, 966 (3d Dep’t 1999) (internal quotations omitted)).

31. Id at 1054.

32. Bolognese v. Bantis, 215 A.D.3d 616, 616, 187 N.Y.S.3d 689 (2d Dep’t 2023).

33. Id at 617.

34. Id.

35. Id at 618.

36. Id at 617-8.

37. Id at 618.

38. Id.

39. Id.

40. Id.

41. Id.

42. Id.

43. Id at 618-9.

44. Id at 619.

45. Id at 619-21.

46. Id at 619.

47. Id (quoting SLC Coram, LLC v. 543 Middle Country Rd. Realty, LLC, 161 A.D.3d 1122, 1123 (2d Dep’t 2018)).

48. Id (quoting Skyview Motel, LLC v. Wald, 82 A.D.3d 1081, 1082 (2d Dep’t 2011) (internal quotations omitted)).

49. Id at 619.

50. Id.

51. Id (quoting Patel v. Garden Homes Mgt. Corp., 156 A.D.3d 807, 809 (2d Dep’t 2017)).

52. Id at 620 (quoting Ryan v. Posner, 68 A.D.3d 963, 965 (2d Dep’t 2019)).

53. Id at 620.

54. Id.

55. Id at 620-1.

56. Id at 621 (quoting Simone v. Heidelberg, 9 N.Y.3d 177, 182 (2007) (internal quotations omitted)).

57. Id.

58. Id at 621.

59. Id; see Simone, supra note 56 (finding that the “need to access off-street parking” is “nothing more than a mere convenience”).