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?
Get Legal Help Today
Compare Quotes From Top Companies and Save
Secured with SHA-256 Encryption
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 11 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!
IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.