23.5 1. Easements

• Jurisdiction: New York

1. Easements

Easements affect marketability because they burden the property and are an encumbrance. They create rights in third persons to use or restrict some portion of the property. Easements come in various forms, both express and implied, and vary in their effect. Among the more common easements are those of right-of-way, drainage, sewer and for installation of pipes, wires and poles. Others can affect vista views, solar access, the maintenance of encroachments and may even grant aircraft the right to fly low over the property.

An easement of almost any kind, except that of a highway providing access for the property, affects marketability.³⁷⁴⁷ Easements for highways abutting the property and the reservation of easements in the street for sidewalks, water and gas pipes and sewers are usually deemed beneficial to the property and may not constitute an encumbrance that makes title unmarketable.³⁷⁴⁸ Driveway easements, including those providing for mutual easements, also make a title unmarketable.³⁷⁴⁹ Even easements for telephone and electric lines or other utilities on, over or under the property make the title unmarketable.³⁷⁵⁰

Easements are discussed more fully in Chapter 31 of this book.

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Notes:

^[3747] . Huyck v. Andrews, 113 N.Y. 81 (1889).

^[3748] . Blumenstein v. Wegman, 14 N.Y.S.2d 525 (Sup. Ct., Monroe Co. 1939) (citing Fossume v. Requa, 218 N.Y. 339 (1916)).

^[3749] . Rhodes v. Astro-Pac, Inc., 51 A.D.2d 656, 378 N.Y.S.2d 195 (4th Dep’t 1976), aff’d, 41 N.Y.2d 919, 394 N.Y.S.2d 623 (1977).

^[3750] . Atlas Realty of E. Meadow, Inc. v. Ostrofsky, 56 Misc. 2d 787, 289 N.Y.S.2d 784 (Sup. Ct., Nassau Co. 1967).