Court Assesses Right to Easement of Third Parties Without an Interest in the Dominent Estate



March 9, 2010

In a rare move, an Appellate Court in New Jersey recently published a decision regarding interpretation of an access easement, setting forth a “clear intent” requirement to determine whether a third party having no interest in the subject properties, could have independent rights to use such an easement.

Rosen v. Keeler, handed down on January 27, 2010, focused on a 1978 declaration establishing a five-foot access easement across a parcel of land fronting on the Atlantic Ocean located in a portion of Long Beach Island, New Jersey known as Loveladies. The easement across the “Ocean Lot” (a flag lot a portion of which provided direct access to Long Beach Boulevard) was created for the benefit of an adjacent lot fronting on Long Beach Boulevard that had no direct access to the beach. Through a series of transactions, title to the Ocean Lot and “Boulevard Lot” came to be held by different owners, and in 1999 the defendants contracted to purchase the Ocean Lot. Just prior to the closing, the plaintiffs, who own property across the street from the Boulevard Lot and had been accessing the beach across both lots for years by virtue of their friendship with the then lot owners, entered into an access agreement with the then owners that gave the plaintiffs access across both the Ocean Lot and the Boulevard Lot to the beach. At the behest of the defendants, who refused to close on the Ocean Lot because of the new access agreement, the plaintiffs executed a document canceling the access agreement as it pertained to the Ocean Lot only. Despite the cancellation, and unbeknownst to the defendants, the plaintiffs continued to use the five-foot access easement over the Ocean Lot to access the beach as guests of the then-owners of the Boulevard Lot, who continued to benefit from the 1978 declaration. However, in 2003 the defendants acquired the Boulevard Lot and although acknowledging that plaintiffs still had access rights across the Boulevard Lot, refused to grant access across the Ocean Lot to the plaintiffs. Plaintiffs then brought an action to enforce their purported rights to the easement across the Ocean Lot.

In deciding the case, the Court focused on the plain terms of the 1978 declaration, which provided that the easement was a covenant running with the land and would bind and inure to the benefit of the lot owners and their respective assigns and successors in title. The plaintiffs argued that the use of the word “assigns” in the 1978 declaration allowed the Boulevard Lot owners to assign their access rights over the Ocean Lot to them without the need to convey an interest in the Boulevard Lot itself. The plaintiffs contended that the assignment had occurred by virtue of the reference to the 1978 declaration in the 1999 access agreement. The Court found the argument unpersuasive and held that the 1978 declaration was an easement appurtenant, and therefore the access rights could not be transferred or assigned to a third party separately from the dominant estate unless “a clear intent to grant such a right” is demonstrated within the document itself. Citing other State court decisions, the Court stated that the use of the word “assign” in easements appurtenant or restrictive covenants indicates an intent that the benefit run with the land, and found that the use of the word in the 1978 Declaration was merely a boilerplate term that did not constitute a clear statement that the easement could be assigned separately from title in the Boulevard Lot. The Appellate Court, citing the lower court’s findings at length, found that “the intent of the parties, as expressed through the instrument creating the easement, read as a whole and in light of the surrounding circumstances” must be used to determine the extent of the rights conveyed by an easement.

Given this decision, it is clear that, absent specific granting language clearly setting forth an intent, third parties having no interest in a dominant estate cannot interpose themselves as a party to an easement and thus derive the benefits thereof.