Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the November 13, 2012 mailing of "Constructive Notice":

Prescriptive Easement Survives Tax Sale

The Appellate Division, Second Department, has held that property reacquired by the tax-delinquent owner following a completed tax sale remains burdened with a prescriptive easement created prior to the tax default. Behar v. Wiblishauser, 2012 NY Slip Op 6907 (2nd Dept., October 17, 2012).

The Suffolk County Tax Act provides for a redemption period between the time of the tax sale and the issuance of the tax deed. In addition, Suffolk County Local Law No. 16-1976 permits redemption for a limited time following recordation of the tax deed, but only if the grantee on the tax deed is the County of Suffolk itself. 

In the instant case, Behar’s seller had lost the property for taxes and reacquired it pursuant to Local Law No. 16-1976. Wiblishauser owned the parcel next door. Wiblishauser also claimed that an easement by prescription had attached to a portion of Behar’s parcel prior to the tax sale. Behar contended that the tax sale and subsequent deed extinguished any off-record easement. The Appellate panel determined that “because the County was the purchaser here, and [the delinquent owner] redeemed the property, she reacquired through the LL No. 16-1976 redemption process exactly what she previously owned: her property burdened with any easement that may have existed.”

The Court was careful to limit its decision to the idiosyncratic procedure used in this case. By so doing, it is leaving for another day the issue of whether a sale to a third party purchaser, rather than a redemption, would extinguish an easement by prescription.


While the result in Behar is consistent with existing law, some aspects of the Court’s rationale appear to break new ground. The County’s redemption deed was made "SUBJECT to all covenants, restrictions and easements of record, if any" (the opinion actually emphasizes the word “restrictions”). Even though the easement at issue was not recorded, the Court nevertheless held that the County had acquired its title “with all appurtenances and restrictions, including any easement by prescription.” By implication, the Court is extending the traditional understanding of both “appurtenance” and “restriction.”

It also relies on the “long-standing rule that private easements of light, air, and access of adjoining land owners that were lawfully acquired before the levying of a tax are not extinguished by a tax sale.” Although an accurate summary, the mere recitation of the rule glosses over the observation that none of the cases cited concerns an easement acquired by prescription. Established precedent rests on the notion that the value of a pre-existing easement is excluded from the assessment upon which the tax sale is based. While this conception makes (legal) sense regarding a recorded easement, how would an assessor be aware of an off-record easement for valuation purposes?