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Robinson v. Rea

2005 WL 3111011 (N.J. Super. Ch. Div. 2005) (Unpublished)

EASEMENTS; LIS PENDENS—Once a court establishes the route of an easement, the benefitted owner’s lis pendens filed in connection with its suit to get that easement must be discharged even if the court’s decision is still appealable.

A dispute arose between two neighboring property owners concerning the establishment of an easement by necessity. The property owner seeking the easement filed a Notice of Lis Pendens. The Court ordered a temporary easement leading to perimeter access and not along what would have been a shared driveway. The Court also ordered that “upon a showing that [the benefitted property was] sufficient for building purposes and upon the granting of the necessary variances and permits for construction, the easement would become permanent.” The property owner over whose property the easement ran then filed an action to have the Notice of Lis Pendens discharged. The discharge application was opposed by the property owner who had gained the easement. It argued that the appeal period had not run, and therefore that the application to discharge the lis pendens was premature. The Court disagreed. It held that “[a] temporary easement currently exist[ed] and it will either turn into a permanent easement by necessity or will cease to exist entirely.” Although the appeal period was still open “and thus these properties may technically be the subject of pending litigation,” if the property owner who had gained the easement wanted to appeal, it could seek a stay of the discharge of lis pendens from the Appellate Court. It further held that there were no issues remaining “with regard to the easement granted. The general description of the path noted during the trial should guide the parties. Reason and logistics should provide guidance as to the exact path.”

The property owner who gained the easement also sought reconsideration of the easement’s path contending that the easement was impractical and, at a minimum, it should have been permitted to use the other property’s driveway “to perform the appropriate tests required to show” whether its own land were buildable. The problem faced by this property owner was that it waited until the day before the motion was heard to submit expert reports. Although the Court recognized that the purpose of the reports would be to persuade it “that the solution the Court [had] suggested [was] an impossibility based on the slope,” the Court could find no rule or precedent which would have allowed the appealing property owner “to submit an expert report post-trial when the same engineers could have submitted their opinions in a timely fashion so that other could have had the opportunity to test their validity.” The property owner had owned the piece of land for sixty years and, according to the Court, had all of that time “to explore opportunities and get the information necessary from an engineering standpoint.” Consequently, it rejected the property owner’s argument, pointing out that the property owner had “received the benefit of the doubt that [its] lot was buildable without producing the evidence necessary and yet want[ed] more, the easement of its choice.” Consequently, the Court refused to change its mind and denied a motion for reconsideration.

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