Does My Joint Property Easement Include Extended Use?

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‘I have a question about property easements “right of way” for property located in upstate NY. Here’s my situation:

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

1) I own 1 piece of a proper subdivision. The division has 4 pieces of property, 2 of which have a right of way across them. The right of ways were surveyed and noted on the filed subdivision plat and noted in detail on the deeds. They are necessary so every one can get to their property.
2) One of the property owners (one of the 2 with the rights of way on crossing their property) owns property adjacent to the subdivision and is now building a house on it. The only access to this new home is through BOTH of the subdivision’s right of ways. The other property owner does not intend to extend the right of way to others.
3) The town has issued a building permit and when confronted with this issue stated that they don’t deal with rights of way.

My questions are:
1) Does a “right of way” extend the right of way for anyone or is it in this case specifically to the 4 property owners in the original subdivision?
2) Is there anything that can be done to halt construction on the new home until the access issue is settled?
3) If the house is built would a mortgage company normally finance a building with no deeded access?
Any advice or info you can offer before we spend money on litigation would be most helpful.’

Well, the answer to your first question is that, most of the time, right of way easements are limited to benefiting a particular property. Typically, a right of way is across parcel A for the purpose of accessing parcel B, and whoever owns parcel B has that right (it passes with ownership of the land). Further, even if parcel B’s owner also owns parcel C, using the easement to access parcel C would arguably be an improper expansion of the easement.

However, that’s usually. You need to look at the document which created the easement to be sure, because any of the things I just described could, at least in theory, be different in your case.

Regarding your second question, you probably aren’t going to get the building to stop without some sort of legal action at this point, whether it’s appealing the building permit (probably too late for that) or seeking an injunction from a court. Make no mistake that this will be expensive.

As for the third question, I can’t say. Real estate practices vary so widely from one area to another that there may be areas where one can get a commercial loan on a property with no legal access. But you couldn’t do it where I am, since you wouldn’t get title insurance and the lender wouldn’t lend without it.

I hope that helped. I think it’s probably time that you consult with a local attorney, and consider both the pros and cons of litigation in your case. It may not make economic sense for you (you might be better off negotiating a payment to allow the expanded use), but you need more information to make an informed decision.

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Author: House Attorney

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