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Kliever v. Sterlington Properties, Inc.

A-1523-06T2 (N.J. Super. App. Div. 2009) (Unpublished)

EASEMENTS; ZONING; ATTORNEYS — As part of zoning approvals, a municipality has the legal right to require conveyance of an easement and all that need be done is for the resolution to be lawfully filed.

A prospective owner toured a home located on a large parcel. She noticed that there were several streams feeding a pond on the property. These streams ran within a drainage easement dating back to at least 1965. The prospective owner was also informed that there were townhouses being built on adjoining property. She was unaware, however, that a predecessor in title had agreed, as part of its development application for the property, to provide an easement by deed to connect the adjoining property to the stream leading to the pond. No deed was filed at the time of that application. When the developer of the adjoining parcel wanted to begin its project, the municipality directed it to use the new easement area to straighten the path of the stream so as to avoid flooding and to build a headwall structure within the 1965 easement area. After the buyer’s visit to the parcel, her prospective general contractor sent her a site plan showing both the 1965 easement and the proposed drainage easement. The prospective buyer denied receiving the site plan and insisted that the general contractor gave her only a “planting schedule” lacking any reference to the proposed new easement.

She then retained an attorney for the purchase. The attorney cautioned her about buying next to a vacant lot and discussed the two easements affecting the parcel. He also noted that she had a copy of the site plan. According to the attorney, his client was adamant about buying the property and possessed an unusually extensive knowledge of the parcel as a result of her prior consultation with a real estate broker and from newspaper accounts. The prospective buyer and her husband then signed a purchase contract. A few months later, the deed of easement was filed. It was somewhat unclear where the easement area was located. A title commitment and survey with the easement were received by the buyers’ attorney. He advised his clients that he had received these documents. At closing, the buyers claimed that there was no discussion of the easements and they denied receiving copies of the survey or the title commitment showing the new easement. The attorney maintained that he went over the survey at the closing, explaining that the new easement would accept drainage from the new project on the adjoining parcel. After the closing, the buyers noticed that the pond water had turned brown. Claiming that they were not aware of the new easement at the time they closed on the property and that they were intentionally deceived, they sued the seller, the adjoining owners, and their own attorney.

The lower court dismissed the suit. First, it rejected the buyer’s contention that their attorney had committed malpractice. It held that the buyers knew the risks they were taking and that their attorney did not violate his duty of care to them. Specifically, it concluded that: (a) contrary to the testimony of the buyer-wife, there was ample evidence to show that she was furnished with a site plan clearly depicting the easement prior to meeting the attorney; (b) the buyer-wife and her attorney had discussed the nature of the easement and the risks of purchasing next to a large development; (c) the buyers were knowledgeable about the adjoining property and would have inquired about matters of concern, including common sense matters such as drainage; and (d) it was inconceivable that the easement did not come up until after closing or that the survey was not “in front of them” at the closing.

Second, the Court dismissed the buyers’ request for a judgment declaring the easement null and void on the theory the municipality did not have the legal right to require its conveyance. It ruled that the resolution requiring the easement had been lawfully filed. Third, as to the alleged damages that were sustained by reason of the easement, the Court ruled that there was no testimony that severe erosion resulted from the easement and there was no testimony regarding the amount by which the property would be devalued because of the presence of the headwall. The Court also opined that the property would not be burdened to a greater extent than that intended at the time the easement was created. Thus, it denied damages.

The Appellate Division affirmed, holding that legal malpractice is a function of the specific situation and the known predilections of the client. Here, the Court believed, in light of the buyers’ intelligence, experience, and detail-oriented nature, that the lower court was correct in accepting the lawyer’s representation that he believed his clients had familiarized themselves with the particulars of the proposed development. The Court rejected the buyers’ contentions that the new easement was not validly created because the municipality, as a grantee, was unlikely to accept the easement since the easement’s location was not clearly identified in the deed, and the municipality might not have wanted to be responsible for any required maintenance. The Court thought this argument was unpersuasive because the municipality conditioned the predecessor’s development application upon the granting of an easement in favor of the municipality and directed the developers of the adjoining property to use the easement for drainage purposes. It also agreed with the lower court that an implied right to do what is reasonably necessary for its complete enjoyment is inherent in every easement. Here, the Court found that the municipality anticipated that engineered, rather than natural, drainage would make use of the easement and that piping and a headwall structure would be needed. Therefore, the engineered drainage was reasonably placed within the easement area.


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