Title reports on older Westchester properties often turn up at least one easement nobody remembers — a right of way to a neighbor’s long-gone barn, a shared driveway from three owners back, a utility strip for a line that was relocated years ago. It sits quietly in the county records until someone decides to sell, buy, refinance, or build. Then the question becomes urgent: does it still matter?
The short answer: probably, and “it’s just old” isn’t enough to make it disappear.
Why Title “Housekeeping” Matters.
In order to understand this issue, one needs to have a basic understanding of the terms “title” and “easement.”
The term “Title” refers to a person’s legal ownership of a property — their right to own, use, and sell it — together with everything recorded against it. A title search traces the property’s history through the county land records and produces a title report listing what comes along with the property: deeds, mortgages, liens, restrictive covenants, and easements. The title insurance company uses that report to decide what it will insure and what it will “except” from coverage.
The term “easement” refers to a third party’s right to use part of the land for a specific, limited purpose — to cross it (a right of way), to run utility lines through it, to drain water across it, etc. The owner owns the land subject to the third party’s easement rights. Critically, an easement recorded in the County clerk’s office generally “runs with the land,” meaning it binds every future owner, not just the people who originally signed it.
Over the decades, a property can collect easements the way an attic collects boxes — each one made sense when it was put there, but many have long outlived their purpose. Title housekeeping means identifying the easements that no longer serve anyone and formally clearing them from the record. An easement no one uses still appears on every future title report, still prompts questions from buyers, lenders, and title insurers, and still limits what can be built in that area. Clearing it on your own timetable is far easier, and far less expensive, than scrambling to address it on a buyer’s timetable.
Why It Matters Legally: Unused Doesn’t Mean Abandoned
The Road Less Traveled Is Still a Road. A recorded easement doesn’t expire just because nobody has used it in years. New York courts are reluctant to extinguish recorded property rights based on disuse alone. To establish abandonment, the party claiming it generally must show both nonuse and a clear, affirmative intent by the easement holder to give up the right permanently — for example, removing the driveway or utility line the easement served, or standing by for years while the land it crosses is built over or fenced off. Whether that standard is met is a fact-intensive question, which means abandonment is something that must be proven, not assumed.
Prescriptive Use Runs the Opposite Way. The flip side: a neighbor’s open, notorious, continuous, and unpermitted use of your land for ten years can create an enforceable easement, even if nothing was ever recorded. So an informal, unrecorded use can mature into a real right, while a recorded-but-dormant easement generally does not simply fade away.
When an Old Easement Becomes a Fork in the Road. A lingering easement can cause trouble at exactly the wrong moment. The title company will list it as an exception, meaning the buyer takes title subject to it, and a buyer (or their lender) may require that it be resolved before funding. If the survey shows a garage, pool, fence, or driveway sitting within the easement area — or if the easement’s location can’t be pinned down at all — the buyer may object, the closing may be delayed, or the price may be renegotiated. For buyers, an easement can also restrict future plans for an addition, a pool, or a new septic system. And easement holders change: today’s friendly neighbor who never uses the right of way may sell to someone who sees value, or leverage, in enforcing it.
Clearing the Path: How Attorneys Can Help
Whether you are preparing to sell or getting ready to buy, an experienced attorney can help you determine which easements still matter and clear away those that don’t.
Reviewing the Title and Survey. An attorney can review each easement listed in the title report — reading the actual recorded instrument, not just the one-line exception — and compare it against the survey and conditions on the ground. We identify where the easement runs, what it was meant to serve, and who holds the benefit of it today.
Identifying Easements That Have Reached a Dead End. An attorney can look for easements that no longer serve any purpose: a right of way to a parcel that now has its own frontage and access, a utility easement for a line that was relocated, or an easement benefiting land that has since come under the same ownership as yours (which, under the doctrine of merger, can extinguish it). We also look for evidence that may support abandonment or adverse use.
Terminating the Easement of Record. Where an easement has outlived its purpose, your attorney can work to remove it from the record so it no longer follows the property. Depending on the circumstances, that may involve negotiating a written release or termination agreement with the owner of the benefited property, signed, acknowledged, and recorded with the County Clerk, and addressing whether that owner’s mortgage lender must also consent so the release is fully effective; documenting a merger of title; or, where the easement holder cannot be located or will not cooperate, bringing an action under Article 15 of the Real Property Actions and Proceedings Law to have a court declare the easement extinguished. We then work with the title company to have the exception removed or appropriately insured over.
Timing Is Everything. For sellers, the best time to clear an obsolete easement is before the property goes on the market, so it never becomes a buyer’s objection or a bargaining chip. For buyers, the time to address it is before closing — through a title objection, a contract provision requiring the seller to cure, or an escrow or credit. Once a buyer closes, the buyer inherits the easement, and the buyer loses much of the leverage they had to resolve it.
The End of the Road
An easement nobody has used in decades may seem harmless, but in New York, “forgotten” is not the same as “gone.” A little title housekeeping now can keep an antiquated right of way from costing you time and money down the road (pun intended).
If you are selling or buying a property burdened by an old or unclear easement, we can review your title and survey, advise you whether the easement is still enforceable, and help you clear it before it trips up your transaction.
If you have any questions regarding real estate in New York, please contact us at (914) 338-8050 or send an e-mail to keith@betenskylaw.com. We look forward to working with you.
Betensky Law, PLLC, 118 N. Bedford Road, Suite 302, Mount Kisco, New York 10549 | (914) 338-8050 | keith@betenskylaw.com | www.betenskylaw.com
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