New York's Cooperative and Condominium Community

HABITAT

ARCHIVE ARTICLE

Subscriber Login


Easement by Necessity

May a co-op assert a long-standing practice of using its leased garage premises to store and then remove trash from its premises? The answer was "yes" in Saxon Garage Corp. v. Regency East Apartment Corp. where the court recognized a prescriptive easement for the co-op and sanctioned the continuation of the practice.

This decision was on a motion for summary judgment dismissing the complaint. The question before the court was whether an owner-landlord of real property can establish an easement by prescription in parts of the leased premises. Neither party's research revealed a case that had discussed this issue. Because the court held that principles involving a tenant's right to an easement applied with equal force to an owner's or landlord's right, the court dismissed the action which the tenant had brought alleging trespass against the defendant owner-landlord.

Plaintiff Saxon Garage Corp. was the commercial lessee of the garage space in the residential garage space of the building owned by the defendant, Regency Apartment Corp. under a 39-year lease of Saxon. At that time, the co-op was using a remote space in the garage for the storage and then removal of the compacted garbage generated by occupants of the residential premises. On the three days of the week scheduled for Department of Sanitation removal, the garbage was brought up to the street, using a mechanical hoist located near where the garbage is stored. At the start of the litigation, this procedure had been going on for 21 years.

Several months after the co-op and Saxon disagreed over Saxon's responsibility regarding repairs in the garage, Saxon brought this lawsuit seeking damages of $1 million for trespass and an injunction against the co-op garage space for the storage and removal of the co-op's garbage.

The co-op's motion argued that it had an easement for storage and movement of garbage through the space in question, necessitating dismissal. Saxon asserted that a landlord was not entitled to an easement over space in leased property. The court said that once the claimant has shown, by clear and convincing evidence, that the subject property was used openly, notoriously, and continuously for the statutory period, the presumption arises that the use was adverse and the burden shifts to the owner of the property to rebut the presumption by showing that the use was permissive.

Real Property Actions and Proceedings Law Section 311 requires that the elements for the easement must have continuously existed for a period of ten years. In an earlier reported case, the tenant asserted an easement and it was the owner who was trying to defeat it, whereas, here, the owner was asserting the easement and the tenant was trying to defeat it. The court noted that there was no reason not to apply the same principle asserted in the earlier case to the owner's need for an easement in this action. All of these elements were satisfied by the co-op and Saxon had not offered any evidence to show that the use was permissive.

Even where the use had been permitted for a time, there are circumstances where the withdrawal of that permission cannot be tolerated. This is the case where "such easement is 'convenient or essential to the beneficial use and enjoyment' of the property." This type of easement has been variously referred to as an easement by estoppel or implication or necessity. Accordingly, it was ordered and adjudged that the motion of the co-op for summary judgment dismissing the complaint was granted.

Comment: What triggered this action for trespass after a long established practice is uncertain. It may have been that the garage was seeking to exact money from its co-op landlord. Perhaps business was in the doldrums and the garage was trying to persuade its landlord to reduce the rent. Certainly, the effort was unsuccessful.

 

Ask the Experts

learn more

Learn all the basics of NYC co-op and condo management, with straight talk from heavy hitters in the field of co-op or condo apartments

Professionals in some of the key fields of co-op and condo board governance and building management answer common questions in their areas of expertise

Source Guide

see the guide

Looking for a vendor?