An easement is an agreement that gives one property owner (known as the “dominant estate”) the right to make certain limited use of someone else’s property. The property subject to an easement is known as the “servient estate”. While there are significant benefits to having an easement, there are also unavoidable obligations assumed by the owner of the dominant estate, as demonstrated in a recent decision of the New York Appellate Division Fourth Department in Otero v. Rochester Broadway Theatre League, Inc.

In the case, the Plaintiff was injured after slipping on snow and ice in a parking lot and sued the Defendant, the operator of a theatre on the property adjacent to the parking lot. The Theatre moved to dismiss the case on the grounds that it had “no involvement” with the parking lot. However, the Plaintiff opposed the motion by submitting a written easement agreement that granted the theater a “perpetual easement over and through the exterior parking area.” The Theatre attempted to defeat the motion by producing a Parking Agreement that expressly obligated the owner of the parking lot property to maintain the property and keep it “reasonably clear of ice and snow.”

While the trial court sided with the Defendant and granted dismissal, the Appellate Division reversed the decision.

The Court cited prior case law that an easement “is more than a personal privilege to use another’s land; it is an actual interest in that land.” That interest imposed a duty on the dominant estate holder to maintain the property.

The Parking Agreement did not change this result. The Court first held that the Defendant was improperly permitted to introduce the Parking Agreement for the first time in its reply papers. It should have been introduced at trial. However, the Court stated that even if the Parking Agreement was properly before it, the dominant estate holder cannot delegate the duty that it owes to members of the public to maintain the servient property in “a reasonably safe condition.”

In its decision, the Court distinguished prior cases which found that the owner of a dominant estate and a servient estate can agree who will maintain the property which is subject to the easement as between themselves. However, it noted that third parties are not bound by that agreement.