Restrictions on Right to Exclude Others from Real Property

In general, as a property owner, you have the right to exclude others from entering or using your property. You also have the right to prevent others from claiming an ownership interest in your property. There are certain situations, however, when you have more limited rights and only a partial interest in your property, such as when there is an “encumbrance” on the property.

An example of an encumbrance is a right or interest in your real property that is held by another person, company, or bank.  For purposes of this article, we will call the person, company or bank that has an encumbrance an interested party.  If there is an encumbrance on your property, you may not have the freedom to completely exclude the interested party from decisions concerning your property. There are two types of encumbrances:

• Lien – a financial claim against your property
• Usage – a restriction on the use of your property

Both lien encumbrances and usage encumbrances can be either voluntary or involuntary.

Use Encumbrances – Easements, Encroachments Deed Restrictions and Eminent Domain

Easement – an easement is a right held by an interested person to use your land in a certain way, despite not having an ownership interest in your property. Easements have certain restrictions, and those restrictions are written into its terms. Usually, easements are made by a grant using a written agreement, but an easement also can be created by operation of law. Easements created by a grant are prepared with the same formalities required for a deed. New York does not require consideration (payment of money) to be given in exchange for the granting of an easement in most cases. Sometimes, a written statement of value received that is signed by the grantee is sufficient.

An easement can be involuntary, known as a prescriptive easement. A “prescriptive easement” is a permanent legal right to use the real property belonging to another person, and is a form of “adverse possession.” It is created, not in a deed or other transaction, but by conduct: the open and hostile use of another’s property for a continuous period of at least 10 years (i.e., the New York statute of limitations).  The prescriptive easement differs from cases of “adverse possession,” where the law actually grants title rights to the “adverse possessor.”  With prescriptive easements, however, the law gives the “user” a “right of use” in another person’s property, equal to the user’s conduct over the 10-year period, with the owner keeping his title to the property. Prescriptive easements most commonly involve a right to travel across someone’s property, such as  a driveway or an access road, in order to reach another property or a body of water.  They can also involve a right to use someone’s property for drainage.

Another type of easement is an easement by necessity, which occurs when the only access to another person’s property is by traveling through your property. To prove the existence of an easement by necessity, the person claiming the easement must show a severance of the unity of title that gave rise to the necessity for the easement. If the need for the easement was not present at the time of the severance of the unity of title, an easement by necessity will not be found.

Encroachment – an encroachment is when a building, fence or other fixed object extends beyond a neighboring property and on to the property of an adjoining owner. Sometimes encroachments can be visually obvious, but you may need a survey of the property done to see if your property is encroaching on the neighbor’s property, or vice versa. If there are any encroachments, a court may order the owner who is encroaching to remove or move the encroachment. An encroachment that exists for ten years, however, may give rise to a prescriptive easement or, in some cases, ownership rights through adverse possession, to the land it is on.

Deed Restriction – a deed restriction or restrictive covenant affects the use of land. Deed restrictions are usually imposed by developers of subdivisions or neighborhoods in order to maintain certain standards in the subdivision or neighborhood.

License –a license is a temporary right to use or occupy real property for a specific purpose, such as a ticket to a sporting event, a stay at a hotel, or a visit to a shopping mall. The permission is not permanent and may be withdrawn by the person or entity who gave it.

Eminent Domain – Pursuant to the 5th Amendment of the Constitution, the government can take your land, or a portion of it, for a public use. This is generally called a “taking” or an appropriation. If the government decides that your private property is needed for a public purpose, you have no choice but to sell it to the government in a “forced sale.”

Eminent domain is probably the greatest legal intrusion the government can make into your property rights. The legal process by which your property is taken is called “condemnation” or “eminent domain.”  However, the government can only take your property if it complies with legal notice requirements and pays you just compensation. The issue of what amount and type of compensation is “just” is often litigated in Court.  Although many people try to stop the taking of their property by arguing that the government does not need your property for public use, or that the compensation offered is not enough, they are usually unsuccessful.  New York has some of the broadest eminent domain laws in the country, and “public use” is widely interpreted. Many people affected by eminent domain hire lawyers to fight for their right to additional compensation.

Legal Editors: Jennifer Polovetsky and Steven Riker, July 2017