Daily Development for Wednesday, May 21, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

STRANGERS:"   New York reaffirms rule that a fee grantor cannot reserve
an enforceable easement benefitting land not retained by the grantor.

Beachside Bungalow Preservation Association of Far Rockaway, Inc.
v. Oceanview Associates, LLC, 753 N.Y.S.2d 133 (A.D. 2 Dept. 2003).

Owners of bungalow brought suit against the owner of 5 adjacent parcels
who built an apartment building on the parcels which the bungalow
owners claimed encroached on a 40-foot wide easement for ocean access
provided for in deeds existing in defendant's chain of title.  The grantors
of those deeds, however, did not own the parcels intended to be
benefitted by the purported easements.  Following the majority rule
invalidating easements benefitting land not owned by the grantor of the
easement, the court found this easement to be ineffective.

In this case there was some uncertainty about the validity of the
easements to begin with, because they appear to have been repudiated by
subsequently recorded correction deeds.   But the court shortstopped any
discussed of that factual issue by invoking the established New York
principle on reservations in strangers.   Apparently the easements, if
valid, were created by the owner of the servient property in favor of third
parties who were not simultaneously receiving title to the benefitted
property, having already obtained such title either from this grantor or

Comment 1: In their treatise on easements, Bruce and Ely comment that
the rule that easements cannot be reserved in strangers has been criticized
by most commentators as "a pointless technicality that serves to frustrate
the grantor's intent."  They note that a number of modern courts have
abandoned it, and that the Restatement of Property and now the Restate
of Servitudes both reject it.  On the other hand, New York courts have
consistently continued to apply it because of a concern about the stability
of land titles.  See Estate of Thomson v. Wade, 509 N.E. 2d 309 (N.Y.

The editor has always stood foursquare in favor of predictability as a
sound foundation for the real estate marketplace.  Bargains are easier
when rules are certain.  Changing rules creates uncertainty.  But we rely
on the common law as well to improve the legal system over time,
identifying loopholes and uncertainties and resolving them with a mind
to good policy.  The same should be true for anachronisms, at least where
they are inconsistent with what many participants in the marketplace
believe is or should be the law.

Changing this rule would in fact carry out the intent of parties to
agreements in which such easements are created.  If the rule were
prospective only, it would not frustrate those who relied upon the old
rule in concluding that easement claims were ineffective.  Parties who
weren't keeping track of the law and thus might be frustrated in relying
on the old rule in the future should subscribe to DIRT and keep up better.
In any event, they're likely to be outnumbered by those who had assumed
that an easement created in a stranger was valid in the first place.
In short, moving the common law to the position that most likely tracks
the expectations of the marketplace is probably a good thing, and ought
to happen here.

Comment 2: Note that the rule against easements in strangers almost
certainly could be circumvented at the time the grantor transfers the fee by
transferring an easement to the benefitted party just prior to transferring the fee.

On the one hand, it could be said that with such circumvention possible,
there is no point in changing the rule.  On the other hand, if it is so easy
to circumvent the rule, then there doesn't appear to be much point in the
rule to begin with.

Readers are encouraged to respond to or criticize this posting.

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