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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 33802
Experience:  15 years real estate, Realtor. Landlord 26 years
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I am in the process of purchasing a home only to find that a

Customer Question

I am in the process of purchasing a home only to find that a survey of the property has an easement from the 1800's. My attorney says that it involves 30 feet of my yard where I was hoping to get a permit to put an inground pool.
Can I get this easement removed?
Submitted: 4 months ago.
Category: Real Estate Law
Expert:  Barrister replied 4 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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Who is the easement holder?

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Also is the easement currently being used by the easement holder?

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What is the easement for?

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thanks

Barrister

Customer: replied 4 months ago.
Someone named the Courneliuos family from the 1800's they used it to access a cemetery that is approx a mile from my home
Expert:  Barrister replied 4 months ago.

Do you know if the cemetery is still there and is it maintained?

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Do you know if anyone is still using it or how long it has been since anyone used it?

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And is there any other route that would access the cemetery from a public road?

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thanks

Barrister

Customer: replied 4 months ago.
The cemetery is still there and maintained. There are several other roads to get to it. The property I am looking to buy is a mile from it and there are many blocks , homes and streets between
Customer: replied 4 months ago.
Unless there was a cemetery closer that no longer exists
Expert:  Barrister replied 4 months ago.

Ok, the only way to extinguish an easement is by either purchasing it from the holders and having them quitclaim deed it over to you or through adverse possession. Tracking down all the heirs and getting them to sign off would probably be cost prohibitive so that pretty much leaves you with adverse possession.

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This is a concept that states basically if you prevent someone from exercising their property rights for a certain time set by statute, then you can extinguish those rights. It is most often used by people who want to claim ownership of property that is not legally theirs after using if for a very long time, but it can be used for an easement as well.

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In New York the period of time for adverse possession must be at least ten (10) years. New York Real Prop. A&P.L. §501-551. If you, or previous owners, have prevented the easement holders from using that easement for at least 10 years, then you can file a "quiet title" action against all the unknown heirs to have a judge declare that it is extinguished.

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So yes, you can extinguish it, but it takes a little work, money, and a real estate attorney to do so.

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thanks

Barrister

Customer: replied 4 months ago.
Thank you !!!
Expert:  Barrister replied 4 months ago.

You are very welcome. Happy to help any time.

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If you feel your original question and any related follow ups have been answered, I would very much appreciate a positive rating on the answer I have provided so I receive credit for my work. If you have a new question the JustAnswer folks require that you start a new question page, but you can request me by putting "For Barrister" in the caption and they will get it to me.

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thanks much

Barrister

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