New York State Right-of-Way Legal Basics
A "right of way" is any right to pass over land, and in the context of New York State law, it refers to the right to use a particular strip of land for a specific use, such as access or utilities. Right of way statutes dictate that the particular parcel, or strip of land, in question belongs to an individual (or individuals), but that their use of said land is subject to the rights of another party.
In New York State, the tenets of right of way law primarily come into play with regard to the development of a given parcel. In a case where a certain plot of land is enclaved—meaning there is no practical way to access the property without crossing over the land owned by another individual—this law can be used to ensure the right of development and access by securing an easement.
New York State law sets certain requirements for how these easements can be secured. Following the language of New York’s Right-of-Way Law—the leading statute on this subject—it states, that the "Lovell code" definition of the term "right of way" refers to "a right of passage over another’s premises . It is a species of easement appurtenant and like an easement appurtenant, constitutes a dominant estate. It is dominant upon the land to the extent that the property to which it attaches is benefitted thereby. It is dominant for the duration of the easement, and when created it does not change the character of the land to which it attaches, but remains as it was before."
Right of way easements may be used for roads and other such highways. Any time a parcel of land is separated from the rest of the world by an enclosure (such as a fence), the owner of that land is imbued with the ownership of the adjacent right-of-way property, which the enclosed property owner may then use to gain access to or from the land—so long as he or she gives the appropriate notice.
These laws also apply to utility companies. If a utility company has a right of way to run its lines through your property, don’t be surprised if they show up one day to do work in the area. The previous owners of the property sold or gave away the adjacent right of way and you are subject to it.
Varieties of New York Right-of-Way
In New York State, there are several types of right of way pertaining to different categories of roads and property. The most common is the public road right of way, usually found where a local municipality has built a road for public use. This includes sidewalks, the space between sidewalks and the street, and the space between the curb and the street.
The other major type of right of way is a private easement, which can be either prescriptive or express. A prescriptive easement is created when one property regularly trespasses on another for a period of ten years. While the trespass is not technically legal, it creates a right of way that allows the user to continue on the path. This is often the case for traffic to an almost landlocked property. An express easement is one written into the deed itself, allowing for use of the pathway.
Utility rights of way are another category of right of way. These areas are maintained by utility companies and allow for access to the utility lines and other infrastructure for both servicing and emergency purposes. A public authority use refers to public authorities – think of the Port Authority of New York & New Jersey – having the right to use the property.
NYS Right-of-Way Legal Landscape
The legal framework governing right of way property in New York is established by a combination of state statutes and local municipal laws. These laws dictate the conditions under which property owners may reclaim their land from right of way designations, and they outline the procedures for doing so.
At the state level, New York Real Property Actions and Proceedings Law, Article 9, Section 911 provides the general provisions concerning statutory construction, including definitions and rules of construction that are applicable to proceedings concerning roads. This statute sets the foundation for the enforcement of rights under section 911, which are addressed by the New York Real Property Actions and Proceedings Law, Article 13, Sections 501-509. NYRPM § 501 outlines the time limitations involved in proceedings to compel the removal of an abandoned road or highway from a deed, including specific provisions for rural counties. NYRPM § 502 provides for the commencement of a proceeding to compel the removal of an abandoned road or highway from a deed, while NYRPM § 503 addresses the proceedings by which an owner having a right of way through another may compel a release of that right of way upon abandonment. NYRPM § 504 states the provisions where no compensation is necessary in such an action, and NYRPM § 505 addresses the necessity of compensation when it does not qualify as a jus tertii case.
Specific definitions relevant to right of way properties are outlined in NYRPAPL § 200 which defines the terms "right of way," "highway," "road," "roadbed," "roadbed location," "road location and line," "roadway," "street," "causeway," "dead end," "cul-de-sac," "highway inspector," "town superintendent of highways," "corner lot," and "intersecting street."
Real property law 313 defines the terms "right of way" and "easement" as "that interest acquired merely for the purpose of the passage of persons or property to and from a highway or street." The legislature states that this will not be construed to mean recognition of rights of access to everybody who has an interest in all property located along an existing road.
Provisions relating to the determination of the existence of rights-of-way or easements, especially in agricultural districts are established in Article 25AA of the NYRPA. Article 25-B relates to the subdivision on privately held street rights-of-way in New York City; and Article 21 dictates procedures concerning buried cable plant alerts.
The Zoning Resolution of City of New York, Section 12-152 outlines the provisions of the Zoning Resolution for the City of New York to be applicable to the use of curblane and right of way properties, which are defined as: "A section of land located within the street lines, generally adjacent to the street line, between the street line and the sidewalk, crosswalk, right-of-way, property line or the edge of roadway, whichever is closest to the street line." Strict restrictions apply to the development of these properties.
For owners in areas outside of New York City, municipalities will often own the rights to those properties and will deed out transfers, which often come with restrictive covenants concerning the limitations of use, the possibility of additional fees or payments to the municipality, or limitations on the type of development allowed. There also may be restrictions from the state department of transportation governing the development of the property in areas that are contiguous to interstate highways.
For New York property owners, the most important aspect of understanding the legal framework for right of way properties is the overarching condition that the owner have the right to obtain a variance from one or more of the restrictions of property under the New York laws. This means that if the owner has a desire to do something others have done on their properties, they have a pathway to obtain permission to do so. Further, the existence of a statute or code restriction does not automatically entail a government taking, nor does the presence of a structure on the right of way automatically bar the property owner from claiming it, provided that there is evidence that there is prior use of such structure which has been abandoned.
Use and Control of NYS Right-of-Way
In NYS, the broad range of laws regarding land and real estate covers all types of rights. The most common ones include easements and right of ways. While, normally only a matter for estates and trusts lawyers, all New Yorkers should be aware of them.
When a person owns a parcel of land, that person has the general right to do whatever the owner wishes with that property. However, when there is another person with superior rights on the property, there are limits on those rights. For instance, if a driveway is installed on top of another person’s property, that person may not be aware of the fact, until it is too late to make a proper claim against the encroaching landowner. If another person uses the property in a manner that is inconsistent with the owner’s use of it, the owner may have a liability issue.
Rights of way are granted for a specific purpose and can be set on a portion or all of a property. An example of a right of way is the path used by utility companies to access their equipment under or over another landowner’s property. As long as the right of way is not used for any other purpose than the one it was granted, it will be honored by the law. Another common use of right of way is for a landlocked property. This property would be entitled to right of way over neighboring properties in order to reach a public road.
In the event right of way is encroached upon by a landowner, then the aggrieved party has a claim against the encroaching landowner and can have the court block them from continuing to encroach. However, the aggrieved party must act quickly. After a statutory period of 10 years or 20 years for some easements, the aggrieved party may be barred from ever obtaining relief.
Disentangling Right-of-Way Conflicts
Even in the most amicable of situations, a right of way can be a source of contention between two property owners. Unfortunately, some disputes cannot be resolved amicably and the result is often the involvement of local authorities or the Courts. Irrespective of how the situation is resolved, the manner in which it is dealt with is important and can leave a lasting imprinted onto the properties involved.
When a right of way is being used improperly, the property owner that is being adversely affected may have a cause of action against the offending property owner. While your New York neighbor may have a right to walk across your property, he or she may not have the right to walk his or her dog or play football on your lawn. When a property owner is using the right of way in a manner that was not intended, the aggrieved party may bring legal action to resolve the issue.
In many cases, a New York attorney may be able to resolve the situation through direct negotiation with your neighbor or through the filing of a lawsuit for injunctive relief, unless the right of way is in writing. If the right of way is written into the deed, the terms of that document will generally be controlling over the terms of any oral agreement. In cases where the right of way is conveyed through prescription (the prescriptive easement) or giving by conduct, it can be very difficult to determine where the line is, often leading to an impasse.
In some cases, mediation can be an effective way to rectify any disputes associated with right of ways. A skilled lawyer can act as a mediator between both parties to come to a resolution that everyone is satisfied with. In the event that no resolution can be reached , arbitration is often the alternative. In arbitration, both sides present evidence and the arbitrator, or neutral third party, makes a decision on the matter. Arbitration can be a single hearing or can be bifurcated.
When a dispute arises, local authorities are frequently called to the scene and in some instances, police officers. The role of law enforcement officers is to ensure that the law is being adhered to and to ensure that no further violations take place. Officers typically do not enforce right of way issues themselves, unless there is a clear and obvious violation of the law.
Where a right of way is established, irrespective of whether it is written or granted by conduct, it is very important that the property owner comply with the rights associated with it. If it is a passive or non-motorized right of way, that is the only thing that should occur on the right of way. If a vehicle is being used to travel on a right of way that is meant for foot and equestrian traffic only, or if a person is riding a horse where only vehicles are permitted, this can be a clear violation.
When a right of way is well defined and violations do occur, the aggrieved party must preserve the physical evidence of those violations in order to prove its case. Having a detailed log of violations and photographic or video evidence is a must, as it will allow for the protection of the property rights at issue. On the other hand, if there are repeated and frequent violations of a right of way that is not properly defined, ongoing and aggressive use may alter the physical characteristics of the right of way, resulting in a wider right of way.
The Effect of Right-of-Way on Property Value
The impact of NYS right of way on the value of a property depends on several factors, including the location of the property, the type of right of way, and any potential restrictions on the use of the property.
Location. In some places right of way has minimal effect on marketability or value due to the locations of the subject property. In those areas, the right of way parcels may be used as utility corridors or in other ways that might benefit the property or may be nearly invisible or unnoticeable. In some cases, a separation of the subject area and the right of way corridors can be accomplished using fences or other measures. So the nature of the right of way is important.
Type of right of way. As referenced above, not all right of way is taken for linear transportation interchanges or related easements. Other types of uses include drainage control, utility installations of various types and other uses such as flood plain management and the like. Some right of way is adjacent to the subject area while some is not.
Restrictions on use. In some cases right of way is divided into larger lots and sold to homeowners. The rights of the right of way owner (NYS) are limited to the right of way easement. Some areas have been subdivided and assigned to homeowners and a lot line was placed through the right of way area. Some of these lots were even improved with houses at the time that they were sold. The homeowner typically will have rights that go beyond the right of way easement. So a property that has right of way or abuts right of way may be impacted in significant ways that are not always as apparent as they may first appear.
Case Studies and Recent Developments
Models have been proposed in which NYS DOT permits are issued with specific conditions regarding side lots and adjoining lands that are part of a certified enhanced, non-expiring Real Estate Tax Stabilization Program (RESTP). Furthermore, it is anticipated that there will be a targeted RESTP "take down" of 31 highway parcels including sites along NYS Route 404, NYS Route 9W and I-687. While the RESTP property is sustainable and has been held for over 15 years, we anticipate no special rights to the land or area adjacent to the interstate will be granted for another 15 years. Use restrictions, lateral and environmental considerations would be implemented as needed.
In Landmark Enterprises v. Wilsey, the Appellate Division, Second Department, upheld the trial court’s decision which ordered the mandatory removal of trees planted in a highway right of way. This prevented the trees from becoming highway obstructions. The Court was convinced that safety took priority over any aesthetic considerations and that the State was under no obligation to create "greenbelts" or buffer zones. The taking of the trees by the State under Right of Way Law § 26 was justified. The Court held that even though the trees could be removed only on issuance of notice to the owners of the abutting property, the trees "cannot be the rightful appurtenance of the abutting property owners."
The tragic death of a 22 year old and the severe injuries to her young brother, both who were in the rear seat of a car driven by their mother in a crash with a motor vehicle, again raises the issue of liability. Adidid v. New York State Thruway Authority was a motor vehicle, personal injury action brought against the State Thruway Authority and the City of Peekskill. As the defendants, we moved for summary judgment regarding the defendant trustee’s reliance upon building code standards to support the movement to dismiss. The building code was not relevant at all to the standard of care regarding inherent dangers relating to traveling on an embankment above the left lane of Route 87 South. As plaintiff was injured while traveling in the entire left travel lane, there cannot be a reasonable expectation that a vehicle will travel off the roadway and onto the embankment.
Guidelines for Property Owners
As a property owner, it is crucial to know the policies regarding the use of right-of-way properties on or adjacent to your land. Multifamily owners, developers and property managers should follow several pieces of advice when working with these lands or assessing whether they have a legal claim against a neighbor for trespass or other actionable offense with respect to the right of way land. A. Research Your Deed: It is important to know when purchasing land if the land has any adverse possessor rights and how those land rights will affect future property owners. Therefore, reviewing your deed is a good place to start. Your deed may be your best line of defense in excluding a neighbor from your land. Take a closer look at where the boundaries of your property may end with reference to your neighbor’s land and any easement land between the two. B. Use Boundary Lines to Your Advantage: If you have a deed that says your neighboring property owner can access your land via easement, then do not allow your neighbor to expand their easement rights by using more of your property than is necessary . A neighbor cannot trespass on your land beyond the specific limitations set forth in the deed language. If your neighbor starts to encroach upon your land, take measures to limit your neighbor’s right of access. C. Use Special Land Use Permits or Zoning Variances to Your Advantage: The construction of certain buildings on certain land requires a special land use permit that will limit potential adverse effects on the neighboring properties. A special land use permit may only permit a building to go up so high. Additionally, zoning variances and zoning requirements can be used to prohibit the construction of buildings and/or limiting the height of buildings. D. Consult with a Litigation Attorney: Consultation with a real estate litigation attorney may be necessary if you have already been affected by an adverse possessor utilizing your land and/or building on your land. For example, consultation with a litigation attorney may be necessary if your neighbor built a fence that encroaches on your land as that will not only affect the use of your land but also might make it more difficult to sell your property.