Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the January 5, 2012 mailing of "Constructive Notice":
Easement Rights Created Solely by Description

The First Department relied solely on the legal description of a street in declaring the existence of a beach access easement despite conflicting language elsewhere in the grant. Gilliland v Acquafredda Enterprises, LLC, 2011 NY Slip Op 9207 (1st Dept., Dec. 20, 2011).

The defendants had appealed the granting of a preliminary injunction prohibiting them from blocking plaintiffs’ access to the beach from the terminus of a private street shown on a filed subdivision map. The street, Casler Place, was one of six streets in the subdivision created by a declaration filed in 1928.  Pursuant to the declaration the sub-divider "creates, establishes and sets apart private roads and easements for ingress and egress . . . and hereby grants and conveys . . . permanent easements of light, air and access in, on and over the six parcels of land." These six streets were all described as bounded "on the East by the high water line of Hammonds Cove on Long Island Sound." The "Whereas clause" of the Declaration states, in pertinent part, that the grantor “desires to create private roads or easements over part of the property in order to give such grantees means of ingress or egress over such private roads to a public highway."

The defendants argued that the “Whereas clause” indicated the intent of the sub-divider to limit the use of Casler Place to ingress and egress from the filed map lots to a public highway. The First Department panel noted that Supreme Court found that the “Declaration was unambiguous as to the scope of the easement.” The panel went on to state that “the so-called ‘metes and bounds’ description ... is the critical portion of the easement” before concluding that “the pertinent language is certain and unambiguous — that the easement extends to the shore.”


At several points in the opinion the Court conflates the physical location of the street, which does appear to be “certain and unambiguous,” with the easement rights that can be exercised over the street, which, because of the language of the “Whereas clause,” may well have been intended to be limited. The opinion does not indicate whether the Declaration (or any other instrument) contained provisions concerning beach usage rights appurtenant to the lots on the map. Nor does it give any guidance to help determine “the critical portion of the easement” in any other situation. The Court appeared very skeptical of the evidence offered by the defendants, going so far as to say that the defendants’ last deed of record “appears to be a fraudulent conveyance.” It is also noteworthy that the opinion also holds that the injunction was supported by an alternate theory of prescriptive easement.