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Rosen v. Keeler

411 N.J. Super. 439, 986 A.2d 731 (App. Div. 2010)

EASEMENTS — Unless an easement clearly and specifically provides otherwise, an easement appurtenant is not assignable to a third party other than one who would take an interest in the actual benefitted estate.

An oceanfront lot and a bay-front “boulevard lot” were separated by a roadway The owner of the oceanfront lot subdivided its property into two lots. In 1978, in order to make the “boulevard” lot more marketable, the owner recorded an easement burdening the oceanfront lot and benefitting the boulevard lot. It gave the eventual owner of the boulevard lot the right to cross over a five-foot strip along the edge of the ocean lot to access the beach. The 1978 easement ran with the land and inured to the benefit of, and was binding upon, the parties and their respective successors and assigns. The oceanfront lot owner then sold the boulevard lot. In 1999, to insure their continued beachfront access, the bay-front lot owner executed an “access agreement” with the owner of the boulevard and oceanfront lots. This agreement created two easements: one burdening the oceanfront lot, and the other burdening the boulevard lot. It permitted the bay-front lot owner to use the five foot strip created by the 1978 declaration (which was incorporated into the 1999 access easement by reference).

When the owner of the oceanfront property wanted to sell its lot, its prospective buyer objected to the 1999 easement. The owner of the bay-front lot signed an agreement cancelling the easement as it related to the oceanfront lot, but retained its easement rights over the boulevard lot. The bay-front lot owner continued to cross the ocean lot, but now as the invited guest of the boulevard lot owner. This situation changed when the boulevard lot owner sold its lot to the oceanfront lot owner. The owners of the now re-consolidated oceanfront lot built a fence blocking the five-foot strip on the ocean lot boundary line. The bay-front lot owner sued, claiming that the three operative documents caused it to step into the shoes of the former boulevard lot owner as an “assignee” of the 1978 easement. The oceanfront owner acknowledged that the 1999 access easement permitted the bay-front lot owner to cross the boulevard lot, but argued that it did not allow access across the oceanfront lot.

The lower court rejected the bay-front lot owner’s contentions, holding that, in New Jersey, unless the easement clearly and specifically provided otherwise, an easement appurtenant is not assignable to a third party other than one who would take an interest in the actual benefitted estate. The bay-front owner had no property interest in the benefitted boulevard estate; it was using the pathway only as an invited guest. Further, the 1978 easement did not clearly and specifically provide for the transfer of easement rights to the owner of the bay-front lot. The lower court also held that when the 1978 easement extended its benefit to “successors and assigns,” it referred to the successors and assigns of that particular benefitted property, not to a third party (as was the case here) who did not have a property interest in the benefitted lot.

On appeal, the Appellate Division affirmed, finding that this easement was clearly an easement appurtenant and not an easement in gross. Appurtenant easements are created when the owner of a burdened estate grants rights over its property to an adjacent property owner (the benefitted estate). The benefits of an easement in gross can be assigned to a third party, but this is not true for easements appurtenant. Consequently, an appurtenant easement may not be used for the benefit of property other than the benefitted estate, nor may it be transferred separately from the benefitted estate because it can only serve the dominant estate. Thus, in the absence of an affirmative showing to the contrary, an appurtenant easement cannot be divorced from the benefitted estate in such a way as to permit it to become an easement in gross or become appurtenant to another parcel.

As to the “successors and assigns” language in the 1978 declaration, the Court held this was used to clarify the grantor’s intent that the benefit of beach access should run with the land. That way, the boulevard lot owner would be assured that if it ever decided to resell the property, it would reap the increased value associated with the ability of subsequent purchasers to enjoy convenient beach access across the five foot strip. The Court agreed with the lower court that there was no clear evidence in the 1978 declaration that the grantor intended to give the boulevard lot owner the right to assign its access easement without conveying some interest related to the boulevard lot itself. It believed the word “assigns” was no more than a boilerplate term designed to capture all possible successors to the grantor’s and grantee’s interests in their respective lots. The Court noted that if the terms of the 1978 declaration were strained to find such assignment rights, there was nothing in the document to limit the number of assigns and the boulevard lot owner would then be able to grant a limitless number of persons the right to use the strip. The Court believed the oceanfront lot owner certainly did not intend such a result.


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