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  1. #1
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    Default New York - Enforceability of Right-Of-Way Restrictions

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

    I'm thinking of purchasing property in a subdivision with the following clause in the deed:

    A right-of-way is granted and retained to be shared with others, for property owners in Subdivision to mutually use all of the roads, streets and rights of way in both Subdivisions. No right of way granted or implied, or rights of way on roads for ingress or egress, may be further burdened, extended, transferred or granted by any lot or land owner to any other lot or landowner, or to any adjacent properties of their owners without a written purchase agreement. This deed restriction which cannot be modified or changed in anyway, will survive the dedication of roads to a municipality if and when that occurs.

    There is neighboring open land next to the subdivision that I would like to also purchase to expand the property, open up views and provide a buffer from further development outside the subdivision. Can anyone provide commentary on the enforceability/legal standing of this clause and whether the deed can truly restrict my movement between two properties that I would own?

    Thanks in advance

    John

  2. #2
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    Default Re: New York - Enforceability of Right-Of-Way Restrictions

    I doubt if that clause will restrict what you do with your adjacent properties.

    However, if you have so much money that you can afford to buy all that property, you can certainly afford a lawyer who will properly advise you.

  3. #3
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    Default Re: New York - Enforceability of Right-Of-Way Restrictions

    Quote Quoting Kmass993
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    My question involves real estate located in the State of: New York

    I'm thinking of purchasing property in a subdivision with the following clause in the deed:

    A right-of-way is granted and retained to be shared with others, for property owners in Subdivision to mutually use all of the roads, streets and rights of way in both Subdivisions. No right of way granted or implied, or rights of way on roads for ingress or egress, may be further burdened, extended, transferred or granted by any lot or land owner to any other lot or landowner, or to any adjacent properties of their owners without a written purchase agreement. This deed restriction which cannot be modified or changed in anyway, will survive the dedication of roads to a municipality if and when that occurs.

    There is neighboring open land next to the subdivision that I would like to also purchase to expand the property, open up views and provide a buffer from further development outside the subdivision. Can anyone provide commentary on the enforceability/legal standing of this clause and whether the deed can truly restrict my movement between two properties that I would own?

    Thanks in advance

    John
    The language of the easement is succinct in that the easement cannot be further burdened or extended to any property that was not granted dominant rights. However, it does say, [unless there is a written purchase agreement]. But that is not clear whether it means that there must be a purchase agreement between the buyer of land and perhaps an association (of the subdivision) or between the buyer of an adjacent land owner that conveys the dominant rights to use the easement .

    It may be just that you have to create a clear chain of the easement grant. Or it could mean that (if there is an association, a HOA)that they must approve the grant of the dominant rights.

    What I find most unusual is this,
    This deed restriction which cannot be modified or changed in anyway, will survive the dedication of roads to a municipality if and when that occurs.
    That makes no sense to me because if a private road is offered to a municipality for dedication and it is accepted, it becomes a public road where the public at large can use the road.

    You need a local attorney to parse the state easement law and advise you.

  4. #4
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    Default Re: New York - Enforceability of Right-Of-Way Restrictions

    That makes no sense to me because if a private road is offered to a municipality for dedication and it is accepted, it becomes a public road where the public at large can use the road.
    Public roads can be shut down by the governing authority or abandoned.

  5. #5
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    Default Re: New York - Enforceability of Right-Of-Way Restrictions

    What are you speaking of. Do you know what a dedication of a private ROW and acceptance means? If accepted by the governing body, it becomes a public road where the governing body becomes responsible for the maintenance of the road. It becomes a public road.

    And if a governing body should later vacate the dedication, the ROW reverts back to the dominant estates.

    You posted gobbledygook that doesn't address the issue.

  6. #6
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    Default Re: New York - Enforceability of Right-Of-Way Restrictions

    All - Thank you for all the helpful responses. How would the answer potentially be different if the two parcels were merged?

  7. #7
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    Default Re: New York - Enforceability of Right-Of-Way Restrictions

    Quote Quoting budwad
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    What are you speaking of. Do you know what a dedication of a private ROW and acceptance means? If accepted by the governing body, it becomes a public road where the governing body becomes responsible for the maintenance of the road. It becomes a public road.

    And if a governing body should later vacate the dedication, the ROW reverts back to the dominant estates.

    You posted gobbledygook that doesn't address the issue.
    Exactly, and the verbiage of the easement is meant to reinstate the easement if the bolded happens. Which clearly you didn't understand.

  8. #8
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    Default Re: New York - Enforceability of Right-Of-Way Restrictions

    Quote Quoting PayrolGuy
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    Exactly, and the verbiage of the easement is meant to reinstate the easement if the bolded happens. Which clearly you didn't understand.
    What are you taking about? The language says that if and when a dedication is made and accepted, that the right of the dominant estates does not change.


    Quote Quoting PayrolGuy
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    Exactly, and the verbiage of the easement is meant to reinstate the easement if the bolded happens. Which clearly you didn't understand.
    We are not discussing the vacation of a dedicated road. The granting language says that the easement cannot be extended to any other property unless there is a purchase agreement. A purchase agreement with whom?

    You once again posted gobbledygook that has nothing to do with the question that was asked. This is not about the vacation of a dedicated easement.

    I suggest that you post on doctrines of law that you understand and not try to prove me incorrect. You know little about easement law. That is obvious over the years that you have been here. So study up on statutes and case law until you understand the law and stop trying to make it seem that I don't understand about easement law. I understand easement law probably more than most attorneys. I read every case that is published on the subject. It's my hobby.

    Quote Quoting Kmass993
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    All - Thank you for all the helpful responses. How would the answer potentially be different if the two parcels were merged?
    You have not answered if there is a subdivision association that has something to say about if the easement can be extended to some adjacent property. Until the question of the exception in the grant language where the easement can be extended to another adjacent property is answered, we can't make a recommendation.

    It is possible that the merger of your property with another that is outside of the subdivision will not overburden the easement. But there are facts that we do not have and you have not answered the question if the subdivision has an association.

  9. #9
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    Default Re: New York - Enforceability of Right-Of-Way Restrictions

    Iím not 100% on whether an association is formed, but Im not sure how relevant it is because the ROW is granted directly by the developer, not the HOA. The purchase agreement referenced in the row clause was one that would be entered into with the developer directly.

    What Iím not really clear in is how this clause is applicable to the situation as I would be using the right of way to access the subdivision property first which is allowed. Once on the subdivision property I would not need any additional extension or grant of the right of way to access the neighboring property from the subdivision property. I think there is an even stronger case for this if the properties were merged. Regarding the burdening, if I were to own both properties itís not clear to me how you could further burden the ROW. You would make the same use of the right of way whether you were accessing the subdivision property or subdivision property to then the adjoining property.

  10. #10
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    Default Re: New York - Enforceability of Right-Of-Way Restrictions

    Quote Quoting Kmass993
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    I’m not 100% on whether an association is formed, but Im not sure how relevant it is because the ROW is granted directly by the developer, not the HOA. The purchase agreement referenced in the row clause was one that would be entered into with the developer directly. .
    If you know that the purchase agreement referred to the original developer, then you need a purchase agreement of the land from the developer. I don't know who owns the land you want to buy so I can't comment.

    But if this was a planned subdivision, it is possible that at some point in the development history, the developer turns over the administration to a Property Owner's Association (POA) or a Home Owner's Association (HOA). Or it is also possible that there is no administration of the subdivision. But given the language of the grant you posted, I don't think that is the case.



    Quote Quoting Kmass993
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    What I’m not really clear in is how this clause is applicable to the situation as I would be using the right of way to access the subdivision property first which is allowed. Once on the subdivision property I would not need any additional extension or grant of the right of way to access the neighboring property from the subdivision property. I think there is an even stronger case for this if the properties were merged. Regarding the burdening, if I were to own both properties it’s not clear to me how you could further burden the ROW. You would make the same use of the right of way whether you were accessing the subdivision property or subdivision property to then the adjoining property.
    The grant that you posted is not ambiguous. It succinctly says that no property outside of the subdivision properties can be served by the easements (the roads inside the subdivision). And while your logic is taken into note on the fact that you would merge the properties, the question still remains if the additional property could overburden the easement. You could later subdivide your property and while your logic is sound now, it may not be for your successors. Easements (appurtenant) attach to the land not to the owners.

    I can't find any NY case law that approaches this scenario.

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