Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the February 18, 2013 mailing of "Constructive Notice":

Extinguished Easements May Live

By Implication

A pair of express easements were extinguished by merger, but may still exist by implication. Knafelc v. Edwards, 2013 NY Slip Op 50079(U) (Sup. Ct., Oswego Cty., January 11, 2013).

Edwards had acquired two adjoining parcels simultaneously from the same grantor. They were conveyed by two separate deeds. The deed for the dominant estate contained an express grant of a “permanent easement” for use of an above-ground septic system installed on the servient estate and an express grant of a “permanent easement” for parking on a portion of the servient estate. The deeds were recorded simultaneously. Edwards failed to pay the property taxes on the dominant estate and title was taken by Oswego County. Eventually, it was purchased from the County by Knafelc.

Knafelc sought to open a business on the dominant parcel, but was denied Planning Board approval due to the lack of a septic system and adequate parking. He then attempted to enforce the easements.

The Court determined that the easements were extinguished by merger when Edwards came into title to both the dominant and servient estates. As a result, they could not pass under the appurtenances clause in the County’s deed. But the Court also held that Knafelc had adequately pleaded facts that might give rise to easements by implication for use of the septic system and for parking. The action will now move toward trial to see if Knafelc can prove his case.


Careful drafting of the original deeds would have avoided a lot of headaches. The seller obviously believed it was important to convey the dominant parcel “together with” the easements.  In addition, she should have conveyed the servient parcel “subject to” the easements. To clarify her intent, she should have also included a “non-merger clause” in each of the deeds. For what it’s worth, Edwards was not represented by counsel at the time of the original purchase. We also suspect that he didn’t purchase title insurance. Of course, had he had either one, the problem may have come to light much sooner.