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Home > Underwriting > Title News > Seventeen Volume Four

SERIES: Seventeen VOLUME: Four DATED: April, 2002

~ EASEMENT FOR USE OF PRIVATE BEACH UPHELD ~

A recently decided case, Stasack v Dooley (Appellate Division, 3rd Dept., decided March 14, 2002) has upheld an easement for use of a private beach despite the absence of a clear statement that the beach rights granted in various deeds ran with the land and were permanent in nature. The Court stated its decision as follows:

"Plaintiffs are the owners of certain real property located at 45 Benker School Way in the Town of Grafton, Rensselaer County, including approximately 100 feet of beach on the shore of South Long Pond, and defendants are the owners of neighboring parcels on Benker School Way or their invitees. Each of the respective parcels now owned by plaintiffs or defendants may be traced to common grantors, Adolf Scholl and Henry Benker. Insofar as it is relevant to this appeal, each defendant took title to his or her respective parcel, either directly from Scholl and Benker or through a predecessor in interest, by way of a deed containing the following (or substantially similar) clause:

'Together with a right of way for purposes of ingress and egress over said private road; also together with the right to use the private beach located on said South Long Pond and owned by the parties of the first part for swimming and bathing purposes, in common with other owners of beach privileges.'

Similarly, a review of plaintiffs' chain of title reflects that they and each of their predecessors in interest took title to their particular parcel "subject to the right of other owners of beach privileges to use the private beach located on the premises hereby conveyed for swimming and bathing purposes". The record further reflects that plaintiffs were aware, prior to purchasing their parcel, that neighborhood families used the beach located on their property for the very purposes outlined in the deeds contained in the respective chains of title.

Plaintiffs took title to their parcel in August 1998 and, in July 1999, commenced this action in Supreme Court, Rensselaer County, as well as a companion action, seeking declarations that defendants had no right to use plaintiffs' beach. Plaintiffs also sought injunctive relief. Ultimately, venue was changed to Albany County and, following a conference before Supreme Court, the various motions then pending between the parties were converted to motions for summary judgment. By order entered October 4, 2000, Supreme Court, inter alia, denied plaintiffs' third request for injunctive relief, dismissed the complaint as against defendants F. Joseph Shulga and Margaret A. Shulga, who were not property owners at any relevant time, granted defendants' motions for summary judgment and permanently enjoined plaintiffs from interfering with defendants' use of the beach for swimming and bathing purposes only. This appeal by plaintiffs ensued.

Plaintiffs' primary argument on appeal is that the language contained in defendants' respective deeds did not create an easement over plaintiffs' parcel but, rather, created a license that plaintiff Stephen A. Stasack has now revoked. We cannot agree. It is well settled that 'an easement appurtenant is created when such easement is ' (1) conveyed in writing, (2) subscribed by the person creating the easement and (3) burdens the servient estate for the benefit of the dominant estate...'. Each of those requirements has been met here. To the extent that plaintiffs contend that the failure to use the phrases 'grant and release' or 'heirs and assigns forever' in the clause describing and conveying the right to use the private beach demonstrates that the grantors intended to create a license rather than an easement, we do not find the absence of such language to be dispositive. Rather, in view of the fact that the right to use the private beach located on plaintiffs' property was freely transferred through successive deeds, and in the absence of any qualifying language indicating that such rights were personal in nature or that the grantors retained the power to revoke such rights, we are satisfied that the grantor intended to and did in fact create a valid easement... .

Plaintiffs' remaining contentions as to the validity of the underlying easement do not warrant extensive discussion. As to plaintiffs' claim that the language contained in defendants' deeds could not create an easement as such deeds do not specifically describe the location of the subject beach, we need note only that where, as here, a deed 'reasonably describes the property where the easement exists * * * the fact that it fails to give the precise location does not preclude a finding that an easement was intended ...' . Based upon our review of the record as a whole, we are persuaded that the location of the beach has been established with sufficient certainty to support the existence of an easement to it.

Equally unpersuasive is plaintiffs' assertion that they are protected against the underlying easement in four chains of title by virtue of New York's recording statutes. In this regard, the case law makes clear that '[a] grantee of land takes title subject to duly recorded easements that have been granted by his [or her] predecessors-in-title' ..., as well as to unrecorded easements of which he or she has actual or constructive notice ... . Inasmuch as plaintiffs were aware, both as a result of a record search that Stasack conducted and conversations with plaintiffs' grantor and certain neighbors, of the underlying easement and the neighbors' use of the beach prior to purchasing the parcel, any claim of 'late recording' must fail. Plaintiffs' remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit."

~ LAWRENCE L. OTT, SR. ~

Lawrence L. Ott, a Schenectady attorney and former long time member of Monroe's Board of Directors, passed away on Tuesday, April 16, 2002 in Rocky Hill, Connecticut after a long illness. Mr. Ott practiced law in the Schenectady area from 1941 through 1997 when he retired. In 1947 he joined Mohawk Abstract Corp., which later merged with Monroe Abstract & Title Corporation. He was a Vice President from 1947 until 1991 with Monroe. He was an astute real estate attorney with an in depth knowledge of title insurance law and was sought out by members of the real estate bar in the Capital Region for his advice and assistance in the resolution of complex title issues on a regular basis.


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