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Nob Hill at Somerset - 204 Single Family Homes Homeowners Association, Inc. v. Kusmick

A-1793-00T1 (N.J. Super. App. Div. 2001) (Unpublished)

EASEMENTS—Where a right of access is shown on a subdivision map even if not described in a recorded declaration, neighboring property owners are entitled to enjoy the benefit of a corresponding right of way.

A homeowner purchased a residential lot in a subdivision. The lot was subject to a 10-foot wide maintenance easement across the homeowner’s property as well as a 10-foot wide access easement directly on top of the maintenance easement. The access easement was concrete paved and ran along the side of the property connecting the subdivision road to another road. The lots in the subdivision were also subject to a Declaration of Covenants and Restrictions which provided that each “property is further subject to easements of record, dedicated public rights of way and other easements as shown on the subdivision map.” Both the Declaration of Covenants and Restrictions and the subdivision map were recorded in the county clerk’s office and were furnished to the homeowner prior to the purchase of the lot. After eight years of living in the subdivision, and after learning that there had been no actual requirement that the developer establish the access easement, the homeowner requested the developer to eliminate the access easement. After the developer refused, the homeowner constructed a fence on both ends of the access easement, restricting pedestrian traffic. Thereafter, the homeowners’ association sought an order restraining the homeowner from obstructing the easement. A title expert concluded that “the intent of the documents and what we find of record was that there was to be established a ten-foot wide access easement.” On this basis, the lower court concluded that “a ten-foot wide express easement exists on the homeowner’s property to be used by pedestrians as a means of connecting the interior subdivision road with the larger township road.” The homeowner appealed, arguing, inter alia, that the lower court misread the language of the Declaration in concluding that its property was subject to an express easement. The Appellate Division relied on Bubis v. Kassin, 323 N.J. Super. 601 (App. Div. 1999) which provides that “when land is sold with reference to a map on which lots and streets are delineated, the purchaser acquires an implied private right of way over the streets. The sale of lots with references to a map on which streets are delineated also constitutes a dedication of such streets to the public.” The Court went on, “the use that can be made of such a private right of way is confined to that which is necessary for the beneficial enjoyment of the lot conveyed.” Here, the Court concluded that the subdivision’s other residents have a private right of way over the access easement, reasoning that the right of access was clearly designated on the subdivision map.


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