Law Lessons from Hoboken Assoc., L.P. v. Kenny, N.J. Super. Ch. Div. (Bariso, J.), DOCKET NO. C-159-15, March 13, 2017:
An easement appurtenant requires a dominant tenement to which it is appurtenant, whereas an easement in gross belongs to its owner independently of his ownership or possession of any specific land.” Vill. of Ridgewood v. Bolger Found., 104 N.J. 337, 340 (1986).
Questions concerning the extent of the rights conveyed by an easement require a determination of the intent of the parties as expressed through the instrument creating the easement, read as a whole and in light of the surrounding circumstances. Poblette v. Towne of Historic Smithville Cmty. Ass’n, Inc., 355 N.J. Super. 55, 63, (App. Div. 2002). “[W]hen the intent of the parties is evident from an examination of the instrument, and the language is unambiguous, the terms of the instrument govern.” Hyland v. Fonda, 44 N.J. Super. 180, 187, (App. Div. 1957).
The law generally recognizes two types of easements, appurtenant and in gross. Rosen, supra, 411 N.J. Super. at 450. The distinction between the two lies in the easement appurtenant’s need for an adjacent dominant tenement, while an easement in gross belongs to its owner independent of any possession of land, whether adjacent or remote. Vil. of Ridgewood, supra, 104 N.J. at 340. An easement appurtenant enhances the value of the dominant tenement by granting rights over the servient tenement. Ibid. (citing Am. Reiter Co. v. Dinallo, 53 N.J. Super. 388, 392 (App. Div. 1959)).
When documents creating an easement are unambiguous, the court’s task is to examine the intent of the parties as expressed through the instrument creating the easement, read as a whole and in light of the surrounding circumstances. Rosen, supra, 411 N.J. Super. at 451. When a grant appears to create rights connected to the grantee’s ownership of certain property, there is a presumption favoring construction as an easement appurtenant. Weber, supra, 2 N.J. Super. at 495. New Jersey courts uniformly have held that use of the word “assign” in easements appurtenant or restrictive covenants means that the parties intended the benefit to run with the land. See Olson v. Jantausch, 44 N.J. Super. 380, 387-88, (App. Div. 1957); see also Perelman v. Casiello, 392 N.J. Super. 412, 418-19, (App. Div. 2007); Amir v. D’Agostino, 328 N.J. Super. 141, 146 (Ch. Div. 1998), aff’d, 328 N.J. Super. 103 (App. Div. 2000).
When the language of the grant is ambiguous, the surrounding circumstances, including the physical conditions of the servient estate and the requirements of the grantee, play a significant role in the determination of the controlling intent. Khalil v. Motwani, 376 N.J. Super. 496, 503, (App. Div. 2005). In determining what the parties intended, “there are no limits on the kinds or combinations of servitude benefits that can be created,” and “the full range of possibilities should be kept in mind” while interpreting the language of the instrument creating the easement in light of the circumstances of its creation. Id. at 501 (quoting Restatement (Third) of Property: Servitudes § 2.6 comment c (2000)).
In Rosen, while discussing the assignability of an easement appurtenant, the court noted the possibility of rare instances in which an easement appurtenant can later become an easement in gross.
Even rarer are cases in which the intention appears to permit what was created as an easement appurtenant to be changed into an easement in gross. Hence it will be assumed, in the absences of an affirmative showing to the contrary, that an appurtenant easement cannot be divorced from the dominant tenement in such a way as to permit it to become and easement in gross or become appurtenant to another tenement.
[Rosen, supra, 411 N.J. Super. at 451, citing 2 American Law of Property §8.73 at 285 (1952).]
Until an appurtenant easement is severed from the dominant tenement, it remains appurtenant. See Roger A. Cunningham et al. The Law of Property §8.10at 461 (1984).
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