Do you have a leg to stand on when a right a way for ingress and egress over a road was granted but then was deeded over to a land buyer?

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Do you have a leg to stand on when a right a way for ingress and egress over a road was granted but then was deeded over to a land buyer?

A parcel of land was sold in a former sub division. When purchased this road was included in the land purchase on the deed. The ingress and egress clause is in the title, but no more road. This owner has full control on the road with closed gate. There are seasonal homes past the gate and he allows them i, but no one else (they have to open and close the gate). What would happen if there was an emergency? Do we have a chance of having this a free road? This would be a hardship for us to go to court, but if we have the right to this road legally we would.

Asked on July 9, 2012 under Real Estate Law, New York

Answers:

Mark Siegel / Law Office of Mark A. Siegel

Answered 9 years ago | Contributor

Your question raises the issue of whether the land owner's actions constitute an "easement infringement" with regard to an existing easement for purposes of ingress and egress. There are several types of easements defined in the law. The facts presented in your question state that the "ingress and egress clause is in the title", so the deed should be reviewed by an attorney. If you possess an "easement of record", meaning that a recorded deed recites the easement held by you, then you may be able to maintain an action to compel the determination of a claim to real property under the NY Real Property Actions & Proceedings Law.

Sec. 1501 of this law permits anyone with an estate or interest in real property to maintain an action under this law. So if you are the holder an easement as to real property, that would be the interest in real property which serves as the basis of your claim in court. The complaint must set forth specific facts as outlined in the statute. Of course, only the court can determine the validity of your claim in the action.

Under NY law, when any action in a court of the state, where the judgment requested would affect the title to, or the possession, use or enjoyment of real property, a party may have a right to file a notice of pendency against that real property. The notice of pendency is constructive  notice from the time of filing of the notice, to a purchaser or incumbrancer that there is a claim pending against that real property. The advantage to the party having the right to file a notice of pendency, is that NY law provides that any person whose deed or incumbrance (for example, a lien) is recorded after the filing of the notice is bound by all proceedings taken in the action after the filing of the notice, to the same extent as if they were a party in that legal action. This serves to protect the filer of the notice, should the property be sold to a new owner or legally encumbered of record while the lawsuit is pending. Hopefully this information was not overly technical and clarified the general law in this area for you. Good luck!      

       


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