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  1. #1
    Join Date
    Oct 2014
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    Question Can a Dominant Estate Expand the Use of an Easement to Benefit Additional Land

    My question involves real estate located in the State of: New Jersey

    A developer has received site plan approval that will misuse/abuse an ingress-egress access easement he has across our property (private right-of-way driveway).

    The problem is, the easement is for Lot A, but he also purchased adjacent Lot B (adding about 1/3 more property). He then merged the two lots via consolidation deed, so lots A and B are now considered Lot A for tax map purposes.

    There is no language in the original easement permitting extension of the easement access benefit to any additionally acquired, expanded or annexed parcels (i.e. Lot B). However, he intends to give access benefit across our property to new housing units and to their parking lot which he plans to construct on the Lot B portion of the land.

    This appears to be a very significant abuse of the easement, which seems to have solid case law prohibiting, and from what I've read, may be grounds for termination of the easement if the two properties can't be separated (the building units will span both lots and can't be separated).

    So my question is, how to proceed to stop this abuse from happening? Does this have to be litigated or is there an easier way to stop this apparent abuse of the easement and trespass on our property?

    Again, the easement terms give no permission to extend benefit to a nondominant land.

    Please let us know your thoughts on how you might approach this issue in a way that avoids litigation if at all possible.

  2. #2
    Join Date
    Jan 2006
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    Default Re: Abuse of Access Easement by Benefitting a Nondominant Land

    Unless the other party bows to your demands it must be litigated. That is how you settle civil disputes.


    Are you the original grantor of the easement? If not do you know who it is and possibly be able to contact them?


    The intent of the grantor can be very important in situations such as this. If the easement was intended only to serve one parcel and the typical associated traffic adding additional unintended traffic is an overburdening of the easement and can often be stopped.

  3. #3
    Join Date
    Nov 2013
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    6,994

    Default Re: Abuse of Access Easement by Benefitting a Nondominant Land

    You are correct in that an easement granted to lot A does not extend to lot B.

    There is no way to avoid potential litigation if the developer, having been put on notice, continues with the project.

    The municipal site plan approval does not obviate the legal terms of the easement.

    You need to speak to an attorney about how to proceed, sooner then later.

  4. #4
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    Oct 2014
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    Default Re: Abuse of Access Easement by Benefitting a Nondominant Land

    Not original grantor but we can contact them. It was an easement by reservation when portion of property was sold off. It was intended to be used for light, daytime-only small business traffic, not 24/7 residential units and multiple retail outlet traffic.


    Quote Quoting jk
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    Unless the other party bows to your demands it must be litigated. That is how you settle civil disputes.


    Are you the original grantor of the easement? If not do you know who it is and possibly be able to contact them?


    The intent of the grantor can be very important in situations such as this. If the easement was intended only to serve one parcel and the typical associated traffic adding additional unintended traffic is an overburdening of the easement and can often be stopped.
    Developer hasn't been put on notice yet to my knowledge, though engineer and several on planning board were informed verbally.

    Was not sure if we could/should file a complaint through local P.D. against developer for trespassing and perhaps get the county prosecutor involved, as it appears it's already being trespassed upon as they have contractors on the property. Figured I'd contact the developer to put him on notice and if he doesn't stop, then file a complaint. Any thoughts on that?

    I'll reach out to an attorney. I spoke with several already but it seems they all wanted to immediately litigate instead of simply starting with communication and sending letters, which seemed like overkill to me.

    Quote Quoting budwad
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    You are correct in that an easement granted to lot A does not extend to lot B.

    There is no way to avoid potential litigation if the developer, having been put on notice, continues with the project.

    The municipal site plan approval does not obviate the legal terms of the easement.

    You need to speak to an attorney about how to proceed, sooner then later.

  5. #5
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    Jan 2006
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    Default Re: Abuse of Access Easement by Benefitting a Nondominant Land

    The police and prosecutor almost assuredly will not do anything here. they will view this as a civil matter. The rights are in dispute so filing a trespass charge is not likely to go anywhere. Your solution likely lies in the courts.

  6. #6
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    Oct 2014
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    Default Re: Abuse of Access Easement by Benefitting a Nondominant Land

    Quote Quoting jk
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    The police and prosecutor almost assuredly will not do anything here. they will view this as a civil matter. The rights are in dispute so filing a trespass charge is not likely to go anywhere. Your solution likely lies in the courts.
    What are your thoughts on us suing the town instead of the developer, challenging their site plan approval based on the fact that it clearly violates our private property rights?

  7. #7
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    Jan 2006
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    Default Re: Abuse of Access Easement by Benefitting a Nondominant Land

    Quote Quoting Uneasement
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    What are your thoughts on us suing the town instead of the developer, challenging their site plan approval based on the fact that it clearly violates our private property rights?
    clearly? I thought that was the problem; it isn't clear and as such, each side believes they are correct.


    but suing the town? They are not responsible for ensuring a party has the rights claimed. You may get a stop work order issued if you go to the town and claim the developer is unlawfully using your property but that will, at best, make them stop until you can get this into court. If you do that and you are wrong though, expect to be sued for any damages the developer is subject to due to your claim.

  8. #8
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    Oct 2014
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    5

    Default Re: Abuse of Access Easement by Benefitting a Nondominant Land

    Well, it's actually clear now, but a mistake was made early on by the board's engineer that lead to an incorrect conclusion that the easement was fine to use for the project when it wasn't. There were numerous easements being looked at, some voided by terms of the agreement, some on nearby parcels, etc, that it got confusing to engineers trying to interpret them. They made mistakes, one being with the easement on our own property. I wish I could explain more, but this isn't the place for that. Added details would be a giveaway to certain parties.

    Thanks for your feedback. I appreciate it.

    Quote Quoting jk
    View Post
    clearly? I thought that was the problem; it isn't clear and as such, each side believes they are correct.

    but suing the town? They are not responsible for ensuring a party has the rights claimed. You may get a stop work order issued if you go to the town and claim the developer is unlawfully using your property but that will, at best, make them stop until you can get this into court. If you do that and you are wrong though, expect to be sued for any damages the developer is subject to due to your claim.

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