THAT PERMANENT EASEMENT IS REALLY A FEE TAKING IN DISGUISE

Often the State of New York will appropriate property for a highway project by utilizing three different types of takings, full fee takings, temporary easements and permanent easements.  Some appropriation maps will indicate all three types of takings.  The fee taking is valued on all damages which result, direct and any severance or consequential damages to the remainder.

The temporary easement is valued at a rental value plus imputed expenses such as real estate taxes.  In addition, if the continued existence of the temporary easement causes damage to the remainder, those too are to be calculated.

But, I saved the best for last.  The permanent easement is little more than a fiction used by condemnors, especially the State of New York, to limit just compensation.

Let’s review the basic concepts.  It is well settled that property must be valued on the date title vests.  Wolfe v State of New York, 22 NY2d 292 (1968).  The second rule (and probably the most important) is that damages are determined not necessarily on what the condemnor plans to do but on what it has the right to do.  Spinner v State of New York, 4 AD2d 987 (3d Dept 1957).

Once the language of the permanent easement provides for any State control over the easement parcel in the future, the permanent easement will be deemed a full taking.  While the language may seem to allow the former owner some use of the parcel, the condition of noninterference gives the State a virtual veto power over any use the claimant may wish to make of their property.  In Kravec v State of New York, 40 NY2d 1060, 1061 (1976), the Court of Appeals stated, “… because only the State knows or can predict what size structures or impairments it may erect under the easement, or how it will use the easement and whether an activity by the claimants will interfere or not.  Furthermore, the limitation of the reservation clause necessarily leaves it to the State to say whether the use the owner wishes to make of the property interferes with the easement.  Under these circumstances a clear right of access does not exist and the inner portion of the property is thus deemed landlocked.  (Citations omitted.)”

Keep the Kravec decision handy anytime there is the taking of a permanent easement.  Property owners must be paid full compensation in partial takings unless the condemnee retains “legal access” – a legally enforceable right to entry and exit.  Pollak v State of New York, 41 NY2d 909 (1977).  The State often argues that the claimant could apply for a permit to cross the acquired area.  But this does not equate to a legal right of access to the remainder.  Gilbert v State of New York, 25 Misc3d 552, 559 (Ct. Cls. Patti, J. 2009).

Posted in Easements, Partial Takings
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