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Adam Leitman Bailey, P.C. Secures Settlement over Contested Easement

By Jackie Halpern Weinstein


Boundary disputes are commonplace for  home owners, and the attorneys at Adam Leitman Bailey, P.C. are well equipped and more than prepared to handle every manner of these neighborly disputes. 

Through title insurance, Adam Leitman Bailey, P.C. represented the Defendants in this particular action.  The parties to this action shared a common driveway by virtue of an easement contained in the deeds for Defendants’ property dating back to the 1920’s, which permitted Defendants egress over the westerly four feet of Plaintiffs’ property.

Plaintiffs installed a fence on the common driveway, which fence infringed upon the easement area.  After Defendants complained to the City, seeking to revoke Plaintiffs’ permit for the fence, Plaintiffs commenced an action pursuant to Article 15 of the New York Real Property and Proceedings Law, seeking a judicial declaration that the easement was extinguished due to Defendants’ purported non-use.

Using their expertise in the law of easements, the attorneys at Adam Leitman Bailey, P.C. argued that easements by grant can only be extinguished by abandonment, conveyance, condemnation, or adverse possession.  In this case, Plaintiffs made no allegations of conveyance, condemnation, or adverse possession.  They claimed that the easement had been extinguished because Defendants had ceased using it.   However, , in order to demonstrate an easement has been extinguished by abandonment, Plaintiffs were required to demonstrate that Defendants have unequivocally demonstrated an intention to abandon the Easement.  Mere non-use is not enough.  

The strength of this argument and the tireless work of Adam Leitman Bailey, P.C. were instrumental in achieving a highly favorable settlement for our client.  In exchange for a small monetary payment, Plaintiffs: (a) consented to a judicial declaration stating the easement was to remain in full force and effect, which declaration was recorded in the land records, and (b)  agreed to remove the fence, allowing the Defendants access to the portion of property that was previously inaccessible due to the illegal fence. 

Jackie Halpern Weinstein and Courtney J. Lerias secured this victory for the Defendants. 

Adam Leitman Bailey PC - New York Real Estate Attorneys

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