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70 Triangle Associates, LLC v. Fantis Realty, LLC

BER-C-340-07 (N.J. Super. Ch. Div. 2008) (Unpublished)

EASEMENTS — Creation of a quasi-easement is premised upon the actual use of one’s property, and not just on an intent to use such property.

A property owner sued an adjoining owner to assert rights to an eleven foot wide blacktop area owned by the neighbor. It claimed it had the right to use the strip for parking and for the turn-around of trailers. The suing owner claimed an easement by prescription and, alternatively, the right to a quasi-easement over this area. The Court made factual findings and resolved all issues by way of summary judgment.

The Court first restated the test for summary judgment analysis – whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law (on the motion). It determined that the claimant’s quasi-easement theory had to fail under this test because such an entitlement required a unity of ownership of the owner’s and neighbor’s property at the time the use of the land created an easement. As evidence, the owner referred to a declaration of easement by the neighbor’s predecessor in title. The predecessor was, at one point, the common owner of both parcels. However, the Court pointed out that creation of the quasi-easement is premised upon the actual use of one’s property, and not just the intent to use such property. The referred-to easement contemplated an intended use by a party that at that time did not hold title to the claimant’s property, and in fact would lose the easement entitlement under the declaration if it did not purchase the land within five years. Further, the Court observed that the declaration of easement would only have given the claimant’s predecessor the right to park vehicles and no more. That parking right was never utilized by the owner. Further, it would have been inconsistent with his intended purpose to use the space for trailer turnaround.

The Court also held that the claimant failed to meet his evidentiary burden to demonstrate an easement by prescription. An easement by prescription requires evidence of continuous, hostile, and exclusive use of the burdened property for at least 30 years by the claimant or its predecessors. The Court saw only a sole certification, from a deceased witness, submitted by the claimant. It referenced a general “use” of the area by the owner’s predecessor in interest beginning 40 years earlier. The Court ruled this certification shed little light into the nature of the use during the pertinent period. The Court concluded that no trier of fact could find, on such evidence, that such a use was adverse and hostile. Accordingly, the Court disposed of the owner’s claims by summary judgment.

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