A neighbor puts a gate across the driveway you have used for years. A buyer learns that someone else has the right to cross the back of the lot. A parcel has no road frontage and no recorded way out. Each is an easement question: a right to use land that belongs to someone else. This article explains how easements arise in New York, what each owner can and cannot do, and how easements end, whether you own the burdened land or need the access.
What an Easement Is
An easement “is not a personal right of the landowner but is an appurtenance to the land benefitted by it,” and it passes to a buyer of that land “even if the deed does not expressly refer to the easement” (Will v Gates, 89 NY2d 778, 783 [1997]). The benefited land is the dominant estate; the burdened land is the servient estate. A buyer of the burdened 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” (Rensselaer Polytechnic Inst. v Schubert, 170 AD3d 1307, 1312 [3d Dept 2019] [internal quotation marks omitted]).
How Easements Are Created
By express grant. An easement can be created in a deed, and it “may be designated by reference to a plat map” (Will, 89 NY2d at 784). Express easements “are defined by the intent, or object, of the parties” (Lewis v Young, 92 NY2d 443, 449 [1998]), and their extent “is determined by the language of the grant and, when necessary, by any circumstances that tend to show the parties’ intent” (Lopez v Adams, 69 AD3d 1162, 1164 [3d Dept 2010]).
By implication from prior use. When one owner divides land, an easement can sometimes be implied from a use that existed before the division. The claimant must prove “(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary for the beneficial enjoyment of the land retained.” Implied easements “are not favored in the law” and must be proven by clear and convincing evidence (Beretz v Diehl, 302 AD2d 808, 810 [3d Dept 2003] [internal quotation marks omitted]).
By necessity. An easement by necessity requires clear and convincing proof that the parcels were once commonly owned and then separated, and that at the time of separation an easement over the other parcel was “absolutely necessary” (Simone v Heidelberg, 9 NY3d 177, 182 [2007] [internal quotation marks omitted]). A parcel left landlocked, with no access to a public highway, meets that test; a claimed need for off-street parking was “nothing more than a mere convenience” (id.).
Prescriptive Easements: Ten Years of Open, Hostile Use
A right of way can also be acquired through use. The claimant must “show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years.” Once continuity and open and notorious use are proven, “hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive” (Rensselaer Polytechnic Inst., 170 AD3d at 1310 [internal quotation marks omitted]).
Permission defeats the claim. Proof of permissive use “will negate the adverse or hostile element” (Beretz, 302 AD2d at 809-810). Permission can be express, or it can be inferred from a relationship “of neighborly cooperation and accommodation” (Rensselaer Polytechnic Inst., 170 AD3d at 1310 [internal quotation marks omitted]). Timing matters: an acknowledgment of the other owner’s title defeats hostility only if it is “made before the prescriptive period expires,” so a driveway owner’s offer to buy an easement after the dispute began did not defeat the claim (id. at 1311).
What the Burdened Owner Can and Cannot Do
Land subject to a right of way still belongs to its owner. Where an easement grants passage, “it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder.” Unless the grant shows a different intent, the landowner “may narrow it, cover it over, gate it or fence it off, so long as the easement holder’s right of passage is not impaired” (Lewis, 92 NY2d at 449). But servient owners “may not use their land in a manner inconsistent with the dominant landowner’s easement or so as to interfere with the normal use of the easement” (B.J. 96 Corp. v Mester, 262 AD2d 732, 733 [3d Dept 1999]).
Gates show where the line falls. In B.J. 96 Corp., a gate across an access road had to be removed “[r]egardless of whether this gate is ever padlocked” (id.). More recently, the Third Department upheld removal of a keypad gate that required the easement holders, every time they came or went, to park at least 16 feet away, leave the vehicle, and walk to a keypad off the traveled surface. That was “a significant alteration to their ability to use the easement in the manner in which they had become accustomed” (Venezia v Luma, — AD3d —, 2026 NY Slip Op 04897, *3 [3d Dept 2026]).
Moving the right of way. Where the grant does not fix the location, and absent a demonstrated intent to the contrary, the landowner can move a right of way “so long as the landowner bears the expense of the relocation, and so long as the change does not frustrate the parties’ intent or object in creating the right of way, does not increase the burden on the easement holder, and does not significantly lessen the utility of the right of way” (Lewis, 92 NY2d at 452). Years of use along the same path do not, by themselves, fix its location (id. at 452-453).
Who Maintains the Right of Way
Dominant owners “are responsible for maintaining and repairing the roadway and, in the absence of an agreement to do so, [the servient owners] are not obligated to make repairs or contribute to their cost” (Lopez, 69 AD3d at 1168). The holder’s right of access includes the right to “not only remove impediments but supply deficiencies in order to construct [or repair] a suitable road” (id. at 1163-1164 [internal quotation marks omitted]). But the work must be “necessary to effectuate the express purpose of [the] easement,” and the holder may not “materially increase the burden of the servient estate[s]” (id. at 1164 [internal quotation marks omitted]). In Lopez, easement holders who improved a steep private road exceeded their easements when the work removed land features that had served as erosion controls, and they were liable for the resulting damage to the neighbors’ land (id. at 1164-1165).
How Easements End
An easement created by grant, express or implied, “can only be extinguished by abandonment, conveyance, condemnation, or adverse possession” (Gerbig v Zumpano, 7 NY2d 327, 330 [1960]).
Abandonment. “[N]onuser alone, no matter how long continued, can never in and of itself extinguish an easement created by grant.” Abandonment requires an intent to abandon plus acts that “clearly demonstrate the permanent relinquishment of all right to the easement” (id. at 331).
Adverse possession. The burdened side can extinguish an easement by showing use that “has been adverse to the owner of the easement, under a claim of right, open and notorious, exclusive and continuous for a period of 10 years” (Spiegel v Ferraro, 73 NY2d 622, 625 [1989]). In Spiegel, a tenant of the burdened parcel gated and locked the easement, regraded it, and parked wrecked cars on it for more than 10 years while the easement holder did not use it, and the easement was extinguished (id. at 624-625, 627-628).
Merger. When one owner acquires the benefited and burdened land, the easement terminates, but only when there is “a unity of title of all the dominant and servient estates” (Will, 89 NY2d at 784). Once extinguished, it is not revived by a later deed to the benefited parcel that mentions it, and the burdened owner’s knowledge of the old easement is “irrelevant” (Simone, 9 NY3d at 181-182).
Going to Court
A person who claims “an estate or interest in real property” may sue “to compel the determination of any claim adverse to that of the plaintiff which the defendant makes” (RPAPL 1501[1]). The prescriptive easement case discussed above was brought under that article (Rensselaer Polytechnic Inst., 170 AD3d at 1308). Courts also enforce easements by injunction; in Venezia, the landowners were ordered to remove the gate and permanently barred from erecting gates across the easement (2026 NY Slip Op 04897, *2, *4).
Before You Act
Get the paper first. Pull the deeds in both chains of title, any filed subdivision map, and a current survey. The wording of the grant governs the easement’s scope and whether its route can move.
Document the use. If you claim a right based on use, gather evidence of who used the route, how, and since when, and whether permission was ever asked for or given. If you let a neighbor cross your land, consider putting that permission in writing.
Be careful with self-help. A gate or fence across a right of way can lead to an injunction, and work that exceeds an easement can lead to damages. Waiting has risks too: in Spiegel, more than 10 years of exclusive, adverse use by the burdened side ended the easement.
Frequently Asked Questions
Can my neighbor put a gate across my right of way?
Unless the grant shows a different intent, a landowner burdened by a right of passage may gate it, but only so long as the easement holder’s right of passage is not impaired. The Third Department has upheld orders removing gates that interfered with the normal use of an easement.
How long does it take to get a prescriptive easement in New York?
Ten years. The claimant must prove by clear and convincing evidence that the use was open, notorious, hostile, and continuous for that period. Proof that the use was permissive defeats the claim.
Does an easement end if no one uses it?
Not through nonuse alone. An easement created by grant ends only by abandonment, conveyance, condemnation, or adverse possession, and abandonment requires acts that clearly show an intent to give up the easement permanently.
Who has to maintain a right of way?
Unless an agreement says otherwise, the easement holder maintains and repairs it, and the owner of the burdened land does not have to make repairs or contribute to their cost.
Toporowski Law represents property owners on both sides of easement and right-of-way disputes in the Capital Region. If you own land that is burdened by an easement, or you need access across someone else’s land, contact our real estate disputes practice to review your deeds, survey, and options.
Attorney Advertising. This article is general information about New York law, not legal advice, and does not create an attorney-client relationship. Every situation is different; consult a lawyer about your specific circumstances. Prior results do not guarantee a similar outcome.
