New York Easements, Landlocked Land and Eminent Domain Laws (2026)

In New York, a prescriptive easement follows the 10-year adverse-possession period by analogy: the Court of Appeals has said that where the two doctrines can be treated alike, "such as the designation of the period of time" in which each right ripens, the statutory rules apply to easements (Di Leo v. Pecksto Holding Corp., 304 N.Y. 505 (1952)), and the statutory period to recover real property is ten years (CPLR 212(a); RPAPL 501). On eminent domain, the Eminent Domain Procedure Law (EDPL) asks whether an acquisition will serve "a public use, benefit or purpose" (EDPL 207(C)(4)), and the Court of Appeals has treated an agency's findings supporting a taking as entitled to deference (Kaur v. New York State Urban Development Corp., 2010).

This page covers both halves of New York law: easements between private landowners first, then the power to take private property. For other states, see our guide to easement laws by state.

Information last verified on 2026-10-19. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers New York state law on private easements (the General Obligations Law, Real Property Law, RPAPL, Highway Law private-road procedure and Court of Appeals decisions) and on condemnation of private property under the state constitution, the EDPL and the Court of Claims Act. It does not cover adverse possession of title in depth (see New York squatters' rights and adverse possession), homeowners' association covenants, zoning or regulatory takings, local ordinances, or condemnation by the federal government, which our eminent domain laws by state guide covers.

How Easements Are Created in New York

An easement is a right to use someone else's land for a limited purpose, such as a driveway or a utility line. In New York it can arise from a written grant, by necessity when a parcel is divided, by prescription after long adverse use, or through the Highway Law's private-road procedure for landlocked land.

Express easements need a signed writing

General Obligations Law § 5-703(1) provides that an estate or interest in real property, other than a lease of one year or less, "cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing." An easement granted by agreement therefore needs a signed writing, and so does giving one up, unless the interest arises or ends by operation of law.

Record it, or risk losing it to a buyer

New York's recording act, Real Property Law § 291, provides that an unrecorded conveyance "is void as against any person who subsequently purchases" the same property "in good faith and for a valuable consideration" from the same seller, if that buyer's conveyance "is first duly recorded." An easement holder who never records the grant can lose it to a later good-faith purchaser who records first. To see what is already on record against a parcel, see how to search New York property records.

Conservation easements

Environmental Conservation Law § 49-0303(1) defines a conservation easement as an easement, covenant, restriction or other interest in real property, created under that title, "which limits or restricts development, management or use of such real property for the purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, or natural condition, character, significance or amenities of the real property."

Prescriptive Easements in New York

A prescriptive easement is a right of use gained by using another's land adversely for the statutory period. New York's rules come from case law that borrows the adverse-possession statutes.

The 10-year period, borrowed from adverse possession

New York's period for prescriptive easements comes from case law. In Di Leo v. Pecksto Holding Corp. (1952), the Court of Appeals said that where both doctrines "are susceptible of similar treatment," including the period within which adverse possession and an easement by prescription ripen, "an analogy exists and the statutory rules are to be applied to easements." The statutory rule is CPLR 212(a): an action to recover real property cannot be brought unless the plaintiff or a predecessor "was seized or possessed of the premises within ten years before the commencement of the action." RPAPL 501 ties the acquisition of title by adverse possession to the expiration of that CPLR 212(a) period.

In a later case about losing an easement, the Court of Appeals described the same period in plain terms: a use of an easement "which is exclusive, open and notoriously hostile to the interests of the owner commences the running of the prescriptive period and the user may extinguish the easement if that use continues uninterrupted for a period of 10 years" (Spiegel v. Ferraro, 73 N.Y.2d 622 (1989)).

What the use must look like

In Di Leo, the Court of Appeals applied a rule it quoted from earlier authority: "Under ordinary circumstances, an open, notorious, uninterrupted and undisputed use of a right of way is presumed to be adverse under claim of right and casts the burden upon the owner of the servient tenement to show that the user was by license." In other words, once the claimant shows that kind of open, uninterrupted use, the landowner must show that the use was permitted.

The Appellate Division, Second Department, has held that "the elements of a prescriptive easement must be established by clear and convincing evidence" and that the use must be continuous and uninterrupted "for the prescriptive period of 10 years." Once the use "has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts" to the landowner to show that the use was permissive (Ciringione v. Ryan, 162 A.D.3d 634 (2d Dep't 2018)).

For comparison, the adverse-possession statute that the courts borrow from lists its own elements for title: the occupancy must be "adverse, under claim of right, open and notorious, continuous, exclusive, and actual," and a claim of right "means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be" (RPAPL 501).

Permission defeats a prescriptive claim

Permitted use is not adverse use. In Hassinger v. Kline, 91 A.D.2d 988 (2d Dep't 1983), the Appellate Division stated that "Where permission can be implied from the beginning, no adverse user may arise until there is an assertion of a hostile right which is made known to the property owner," and found that use of a roadway "arising from a cordial and co-operative relationship, connoted not a hostile user but, rather, a permissive one."

For adverse possession of title (not easements), RPAPL 543 goes further by statute: "de minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls" are "deemed to be permissive and non-adverse," and so are "the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner's property." The section's text is written for the adverse-possession article and does not mention easements.

An owner who lets the public onto land for recreation has a separate, liability-only protection. General Obligations Law § 9-103 provides that an owner owes no duty to keep premises safe for listed activities such as hiking, hunting, fishing, horseback riding and snowmobiling, and that giving permission does not make the user an invitee. It does not limit liability "for willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity" or where permission "was granted for a consideration other than the consideration, if any, paid to said landowner by the state or federal government." The statute addresses injury liability; it does not itself say anything about easements.

Adverse possession of title is a separate claim

A prescriptive easement gives a right to use land; adverse possession transfers ownership. Both run on the 10-year CPLR 212(a) period (for easements, by analogy), and title claims must meet the RPAPL 501 elements quoted above. For the title rules, see New York squatters' rights and adverse possession, and for other limitation periods, see the New York statute of limitations guide.

Landlocked Property in New York

New York law gives an owner without access a statutory private-road procedure through the town and a common-law easement by necessity.

The Highway Law private-road procedure

The state constitution authorizes private roads. Article I, § 7(c) provides that "Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceedings, shall be paid by the person to be benefited."

The Highway Law supplies the procedure:

• Application. The application "shall be made in writing to the town superintendent of the town in which it is to be located, specifying its width and location, courses and distances, and the names of the owners and occupants of the land through which it is proposed to be laid out" (Highway Law § 300).
• Jury. A jury is selected "for the purpose of determining upon the necessity of such road, and to assess the damages by reason of the opening thereof" (§ 301). The jury views the premises, hears the parties and their witnesses, and "if they shall determine that the proposed road is necessary," assesses damages to the owners whose land the road crosses and delivers a written verdict to the town superintendent (§ 307).
• Payment. The damages "shall be paid by the party for whose benefit the road is laid out, before the road is opened or used; but if the jury shall certify that the necessity of such private road was occasioned by the alteration or discontinuance of a public highway, such damages shall be paid by the town and refunded to the applicant" (§ 310).
• Review within 30 days. Within 30 days after the jury's decision is filed in the town clerk's office, the owner, occupant or applicant may apply to the county court for an order confirming, vacating or modifying it. "If no such motion is made, the decision of the jury shall be deemed final," and if the final decision is adverse to the applicant, "no other application for the same road shall be made within one year" (§ 312).
• Use of the road. The road is "for the use of such applicant, his heirs and assigns," only as a road, and the owner of the land it crosses may use it as a road only if the owner told the jury so before the damages were assessed (§ 314).

Easement by necessity under the common law

A landlocked owner can also claim an easement by necessity when the land was once part of a larger parcel. In Simone v. Heidelberg, 9 N.Y.3d 177 (2007), the Court of Appeals held that the party asserting such an easement "bears the burden of establishing by clear and convincing evidence" the elements, which the court stated, quoting earlier decisions, as "that there was a unity and subsequent separation of title, and [ ] that at the time of severance an easement over [the servient estate's] property was absolutely necessary." The court added, again quoting earlier authority, that "the necessity must exist in fact and not as a mere convenience."

Easement implied from an existing use

New York courts also recognize an easement implied from a use that existed before a parcel was divided, such as a shared driveway or sewer line. The Appellate Division, Fourth Department, has required proof of "(1) a unity and subsequent severance of title with respect to the relevant parcels; (2) that during the period of unity of title, the owner established a use in which one part of the land was subordinated to another; (3) that such use established by the owner was so continuous, obvious, and manifest that it indicated that it was meant to be permanent; and (4) that such use affects the value of the estate conveyed and that its continuation is necessary to the reasonable beneficial enjoyment of the estate conveyed." Unlike an easement by necessity, the claimant "must show only a 'reasonable', not an absolute, necessity" (Monte v. DiMarco, 192 A.D.2d 1111 (4th Dep't 1993)).

Drainage easements across neighboring land

The state constitution declares "the drainage of swamp or agricultural lands" a public use and lets the legislature permit owners to build drains, ditches and dikes "upon the lands of others, under proper restrictions, on making just compensation" (N.Y. Const. art. I, § 7(d)). Under Environmental Conservation Law § 15-1983(1), an owner of low or wet agricultural land who needs drains, ditches or dikes on land belonging to others "may acquire an easement or right to effect such purpose pursuant to the provisions of the eminent domain procedure law," or may instead petition the Department of Environmental Conservation.

Using, Moving and Entering Across Easements

Relocating a right of way

In Lewis v. Young, 92 N.Y.2d 443 (1998), the Court of Appeals asked whether a landowner could, without consent, relocate an easement holder's right of way, and concluded that "under the particular circumstances presented, the landowner can move the right of way, so long as the easement holder's right of access and ingress is not impaired." The holding is tied to the facts of that case; it is not a general rule that any owner may move any easement.

Entering a neighbor's land to make repairs (RPAPL 881)

A related but different right lets an owner get onto adjoining land for construction work. RPAPL 881 is a court-granted license, not an easement. When improvements or repairs "cannot be made by the licensee in a commercially reasonable manner without entering the premises of an adjoining owner, other than a state entity, and permission so to enter has been refused," the owner may bring a special proceeding for a license to enter.

• Refusal includes silence. "Refused" includes instances where "more than one written notice has been served, by certified mail, on the owner and has not been responded to within sixty days."
• Court terms. The license "shall be granted by the court in an appropriate case and upon such other terms as justice requires."
• Payment. The licensee is "liable to the adjoining owner for actual damages occurring as a result of the entry," and must reasonably compensate the adjoining owner "for the loss of use and enjoyment of the adjoining premises including diminution in value."
• State land. Where the adjoining property is owned, leased or otherwise occupied by a state entity, "the court shall not grant a license." The in-force text defines a state entity as "any department, division, agency, office, public authority, or public benefit corporation of the state of New York," or an affiliate or subsidiary of one.

These rules come from a 2025 rewrite of section 881 (L. 2025, ch. 601, signed December 5, 2025 and effective immediately), so court decisions under the earlier text applied different wording.

How an Easement Ends in New York

The Court of Appeals has held that "an easement created by grant, express or implied, can only be extinguished by abandonment, conveyance, condemnation, or adverse possession" (Gerbig v. Zumpano, 7 N.Y.2d 327 (1960)).

• Nonuse is not enough. "nonuser alone, no matter how long continued, can never in and of itself extinguish an easement created by grant" (Gerbig).
• Abandonment. Proof requires "both an intention to abandon and also some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the easement" (Gerbig).
• Adverse use by the landowner. Use that is exclusive, open and notoriously hostile to the easement owner, continued uninterrupted for 10 years, may extinguish the easement (Spiegel).
• Common ownership. In Simone, the Court of Appeals noted that it was "undisputed that the easement was extinguished when the parcels came under common ownership."
• Release. Giving up an easement by agreement needs a signed writing under General Obligations Law § 5-703(1), usually a recorded deed. See the New York quitclaim deed guide for how a release deed is prepared and recorded.
• Condemnation. An easement can be taken like any other interest, because the EDPL's definition of real property includes "all easements and hereditaments" (EDPL 103(F)).

Restrictions are treated differently from rights of way. Under RPAPL 1951(1), a restriction on land use created "by covenant, promise or negative easement" shall not be enforced by injunction or by a judgment compelling a conveyance if, when its enforceability is questioned, "it appears that the restriction is of no actual and substantial benefit to the persons seeking its enforcement."

Eminent Domain in New York

Eminent domain is the power to take private property for public use with just compensation. New York's constitution states the rule, and the EDPL supplies the procedure. For federal law and other states, see our eminent domain laws by state guide.

The takings clause

Article I, § 7(a) of the New York Constitution provides: "Private property shall not be taken for public use without just compensation." The clause speaks of property "taken"; its text does not add the words "or damaged."

Who may condemn, and what can be taken

The EDPL defines a "condemnor" as "any entity vested with the power of eminent domain" (EDPL 103(D)). "Real property" includes land, improvements and "all easements and hereditaments, corporeal or incorporeal" (EDPL 103(F)), so an easement can be taken by itself.

The EDPL controls over other laws: "Notwithstanding any inconsistent provisions of law, general or special, the provisions of this law shall be controlling," and any interest in real property subject to acquisition "shall be acquired pursuant to the provisions of this law" (EDPL 705).

Public use after Kelo

The EDPL frames the public-use question as whether "a public use, benefit or purpose will be served by the proposed acquisition" (EDPL 207(C)(4)), and the condemnor's findings must specify "the public use, benefit or purpose to be served by the proposed public project" (EDPL 204(B)(1)).

New York's highest court has given those findings deference. In Goldstein v. New York State Urban Development Corp., 13 N.Y.3d 511 (2009), the Court of Appeals, quoting an earlier decision, said that where the responsible bodies "have made their finding, not corruptly or irrationally or baselessly, there is nothing for the courts to do about it," and concluded: "This is not a record that affords the purchase necessary for judicial intrusion." In Kaur v. New York State Urban Development Corp., 15 N.Y.3d 235 (2010), the court held that the agency's findings "were rationally based and entitled to deference" and that its alternative finding of "civic purpose" likewise had a rational basis.

Both cases upheld takings, on findings of blight, for projects carried out by private parties: a 22-acre mixed-use development in downtown Brooklyn "to be undertaken, by private developer Bruce Ratner" and affiliated companies (Goldstein), and a new Columbia University campus (Kaur).

At the federal level, the U.S. Supreme Court held in Kelo v. City of New London (2005) that the takings challenged there, made under a plan that "unquestionably serves a public purpose," satisfied the Fifth Amendment's public use requirement, while stressing that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power." States that receive federal financial assistance for a project must give assurances that, in acquiring property, they will be guided "to the greatest extent practicable under State law" by the federal Uniform Act's land acquisition policies (42 U.S.C. § 4655(a)).

Before the taking: hearing, findings and the 30-day challenge

Where EDPL article 2 requires a public hearing, the public notice must run "at least ten but no more than thirty days prior to such public hearing" in at least five successive issues of an official daily newspaper, if the locality designates one, and of a daily newspaper of general circulation (EDPL 202(A)). Each assessment-record billing owner, or the owner's attorney of record, must also be served, by personal service or certified mail, at least ten but no more than thirty days before the hearing (EDPL 202(C)).

Watch out: The hearing notice must state that owners who later want to challenge the condemnation "may do so only on the basis of issues, facts, and objections raised at such hearing" (EDPL 202(C)(2)). An objection not raised at the hearing may be unavailable later.

After the hearing:

1. Findings within 90 days. The condemnor, "within ninety days after the conclusion of the public hearings," must make its determination and findings (EDPL 204(A)).
2. Owner notice. The notice to owners must state that "there are thirty days from the completion of the condemnor's newspaper publication requirement to seek judicial review" and that the exclusive venue is the Appellate Division in the judicial department where any part of the property lies (EDPL 204(C)).
3. Petition within 30 days. A person aggrieved by the determination and findings may petition the Appellate Division "within thirty days after the condemnor's completion of its publication of its determination and findings" (EDPL 207(A)).
4. Limited review. The court decides only whether the proceeding conformed to the federal and state constitutions, whether the acquisition is within the condemnor's statutory authority, whether the findings followed EDPL article 2 and article 8 of the Environmental Conservation Law, and whether a public use, benefit or purpose will be served (EDPL 207(C)).
5. No other court. Apart from that petition and review by the Court of Appeals, "no court of this state shall have jurisdiction to hear and determine any matter, case or controversy concerning any matter which was or could have been determined" in the article 2 proceeding (EDPL 208).

The Appellate Division's jurisdiction is exclusive, and these cases are heard "as expeditiously as possible and with lawful preference over other matters" (EDPL 207(B)).

Some condemnors are exempt from the hearing article. Among the exemptions in EDPL 206, subdivision (B) covers a condemnor that obtained a certificate of environmental compatibility and public need under article VII of the Public Service Law, or a siting permit for a major electric transmission facility under article VIII.

If the condemnor does not begin acquisition proceedings within three years after the later of the events listed in EDPL 401(A), which include publication of its determination and findings, "the project shall be deemed abandoned" (EDPL 401(B)).

Negotiation, appraisal and the offer

• Negotiation. At all stages, the condemnor "shall make every reasonable and expeditious effort to justly compensate persons for such real property by negotiation and agreement" (EDPL 301).
• Owner information. If the owner does not furnish information the condemnor requests under EDPL 302, that failure "shall suspend the condemnor's obligation to make an offer to such owner" until the information is provided.
• Offer amount. The written offer must be "for one hundred per centum of the valuation so established," and "In no event shall such amount be less than the condemnor's highest approved appraisal" (EDPL 303).
• Timing and itemization. "Wherever practicable," the offer comes before acquisition and itemizes "the total direct, the total severance or consequential damages and benefits as each may apply to the property" (EDPL 303).
• Advance payment. An owner "may reject the offer as payment in full and instead elect to accept such offer as an advance payment," without prejudice to claiming more (EDPL 304(A)(3)).
• 90 days to accept in writing. The offer "shall be deemed rejected in the event that a condemnee within ninety days of the offer fails or refuses to notify the condemnor in writing that the advance payment is accepted" (EDPL 304(B)). If the offer is rejected or deemed rejected, or the owner unreasonably fails to provide the papers needed to transfer title within 90 days of receipt, the condemnor's obligation to pay interest on the offer amount is suspended until the owner accepts the offer (as payment in full or as an advance payment) or provides the papers (EDPL 304(C)).
• Repayment of an excess. When an advance payment exceeds the court's award, the court, on motion, enters judgment for the condemnor for the excess "and appropriate interest" (EDPL 304(H)).

Watch out: Accepting the offer as an advance payment preserves the right to claim more, but in state takings, where the EDPL 503(A) filing period applies, failing to file a claim within that period "shall be deemed an acceptance of the amount paid as full settlement of such claim" (EDPL 304(A)(3)). Separately, rejecting the offer, or letting it be deemed rejected after 90 days, suspends interest on the offer amount until the owner accepts it (EDPL 304(C)).

Entry, title and possession

Before acquiring, a condemnor may enter property "for the purpose of making surveys, test pits and borings, or other investigations," after notice delivered personally or by first-class mail "at a reasonable time prior to such entry," and is liable for damage the entry causes (EDPL 404).

How title passes depends on who is taking:

• State takings. Once the state files the acquisition map in the acquiring agency's office and notifies condemnees by first-class mail, it "may immediately enter upon and take possession" of the property (EDPL 402(A)(1)-(2)), subject to the possession rule below. When it files a certified copy of the map with the county clerk or register, "title to such property shall be vested in the state" (EDPL 402(A)(3)), and the condemnor must serve each owner a notice of acquisition "within ninety days after filing the acquisition map" (EDPL 502(A)).
• Other condemnors. The condemnor petitions the supreme court and must serve the owner of record "at least twenty days prior to the return date of the petition." Where service is by mail, the condemnor must also publish notice 10 to 30 days before the return date in at least ten successive issues of a newspaper, although it may skip the general-circulation newspaper series if it held an article 2 hearing or was exempt from article 2 under EDPL 206 (EDPL 402(B)(2)). An owner may appear and interpose a sworn answer, which must specifically deny each contested material allegation of the petition or state new matter constituting a defense (EDPL 402(B)(4)). Title vests when the court's order and the acquisition map are filed (EDPL 402(B)). Within 30 days after entry of the vesting order, the condemnor must serve a notice of acquisition stating the date by which owners must file a claim or notice of appearance (EDPL 502(B)).
• Bond for regulated private condemnors. A non-governmental condemnor regulated by the Public Service Commission or the Commissioner of Transportation must deposit a bond or undertaking, in an amount the court fixes, before title vests; the parties may waive it by stipulation (EDPL 402(B)(3)(f)).
• Early entry. In supreme court proceedings, if the public interest "will be prejudiced by delay," the court may let the condemnor enter and use the property temporarily on a court-fixed deposit, after notice to the parties of not less than eight days. If the petition is dismissed or the proceeding abandoned, the deposit pays the owner's damages and costs, and "the possession of the property shall be restored" (EDPL 402(B)(6)).

On possession, "no condemnee shall be required to surrender possession prior to the condemnor's payment to him of its advance payment or the deposit of such amount," unless the condemnee has not complied with EDPL 302 (EDPL 405(A)). A former owner still living in the home owes nothing for its use and occupancy until "ninety days after the date of acquisition" or until the owner stops occupying it residentially, "whichever occurs first" (EDPL 305(A)).

Claiming compensation: courts and deadlines

• Which court. The Court of Claims has exclusive jurisdiction over claims from acquisitions "by or in the name of the people of the state of New York." For other acquisitions, the supreme court has jurisdiction over the claims and hears them "without a jury or without referral to a referee or commissioners" (EDPL 501).
• State takings: three years. A condemnee must file a claim "within three years after service of the notice of acquisition or date of vesting, whichever is later," or within a time the court fixes under EDPL 505 or 512, with service on the attorney general (EDPL 503(A)). Court of Claims Act § 10(1) likewise requires a claim for the state's appropriation of land to be filed within three years after it accrues or, where title vested by filing a description and map, within three years after personal service of the map and notice of filing.
• Other takings. The claim is due "within the time specified by the court" (EDPL 503(B)), which the notice of acquisition states (EDPL 502(B)).
• Missing the three-year deadline (state takings). "The failure of a condemnee to file a claim within such three year period shall be deemed an acceptance of the amount paid as full settlement of such claim," although the claimant may still collect the amount of the condemnor's offer on proof of entitlement (EDPL 503(A)).
• Interpleaded claimants. In Court of Claims acquisitions, a party served in an interpleader must file its own claim within 120 days of service; one who does not "may not thereafter file such an independent claim" (EDPL 505(B)).
• Appeals. The CPLR governs EDPL proceedings unless the EDPL or court rules provide otherwise (EDPL 703), and an appeal as of right must generally be taken within thirty days after service of the judgment or order with written notice of its entry (CPLR 5513(a)).

Watch out: In state takings, interest stops running if the owner does not file and serve a claim within six months after the claim accrues or after personal service of the notice of acquisition, whichever is later; it starts again only when the claim is filed (EDPL 514(B)). The three-year filing window and the six-month interest window are different clocks.

Small claims: $25,000 or less

When "the total compensation demanded by all condemnees having an interest in a particular property" is $25,000 or less, exclusive of interest, a condemnee may ask the court, within the EDPL 503 time, to use the small-claims procedure (EDPL 601(A)). The parties "need not be represented by an attorney nor present expert witnesses, nor shall the rules of evidence apply" (EDPL 602). An appeal lies only "on the sole ground that substantial justice has not been accomplished between the parties according to the rules and principles of substantive law" (EDPL 604).

Compensation, interest and costs

The EDPL ties the offer to the condemnor's valuation and appraisal and asks for an itemization of direct damages, severance or consequential damages, and benefits (EDPL 303). On top of the award, a condemnee "shall be entitled to lawful interest from the date of acquisition to the date of payment," subject to the suspension rule above (EDPL 514(A)).

The condemnor must also reimburse, as separately stated incidental expenses (EDPL 702(A)):

• recording fees, transfer taxes and similar expenses of the transfer;
• a penalty for prepaying a preexisting recorded mortgage "entered into in good faith"; and
• the prorated share of real property taxes, water and sewer rents and similar charges allocable to the period after vesting or possession, whichever is earlier.

The Court of Appeals has said the measure of compensation "generally is market value at the time of appropriation, that is, the price a willing buyer would have paid a willing seller for the property," based on "the highest and best use of the property even though the owner may not have been utilizing the property to its fullest potential when it was taken" (Matter of Town of Islip, 49 N.Y.2d 354 (1980)). This page does not cover New York case law on business losses.

For Department of Transportation acquisitions, Highway Law § 30(10) directs the commissioner to adopt rules authorizing payment of actual reasonable and necessary moving expenses of occupants, and of reasonable expenses to reestablish a displaced farm, not-for-profit organization or small business "not to exceed ten thousand dollars." For a dwelling the displaced owner owned and occupied for at least 180 days before negotiations began, the supplemental payment to that owner "shall not exceed twenty-two thousand five hundred dollars."

Attorney, appraiser and engineer fees

The EDPL provides for fee recovery in these situations:

• Award well above the condemnor's proof (discretionary). Where the award "is substantially in excess of the amount of the condemnor's proof and where deemed necessary by the court for the condemnee to achieve just and adequate compensation," the court "may in its discretion" award an additional amount for actual and necessary costs, including reasonable attorney, appraiser and engineer fees actually incurred (EDPL 701).
• Abandonment or no authority (mandatory). If the condemnor abandons the acquisition procedure, or a court determines the condemnor "was not legally authorized to acquire the property, or a portion of such property," the condemnor "shall be obligated to reimburse" the condemnee's actual and necessary costs, including reasonable attorney, appraisal and engineering fees (EDPL 702(B)).
• De facto taking (mandatory). If a court determines the condemnor "did in fact take property after the condemnor denied that there was any taking of property and made no offer to settle the claim," the condemnor must reimburse the costs and fees incurred "in establishing the de facto taking" (EDPL 702(C)).

Getting the property back: right of first refusal

EDPL 406(A) gives a narrow repurchase right. It applies only when the condemnor acquired the property in fee, then abandoned the project, and the property "has not been materially improved." In that case the condemnor "shall not dispose of the property or any portion thereof for private use within ten years of acquisition without first offering the former fee owner of record" a right of first refusal at "the fair market value of such property at the time of such offer." The former owner has "sixty days after service of such notice to serve a written acceptance." After a partial taking in fee, the offer "need not be made unless such former fee owner has title to the contiguous remainder parcel at the time the condemnor determines to dispose of the property."

New York Easement and Eminent Domain Rules at a Glance

Related New York Pages

• Easement laws by state
• Eminent domain laws by state
• New York squatters' rights and adverse possession
• New York property records
• New York quitclaim deed
• New York statute of limitations

This article provides general legal information about New York easement and eminent domain law as of 2026-10-19. It is not legal advice. For advice about a specific property or taking, contact a lawyer licensed in New York.

Last updated: 2026-10-19.

Frequently Asked Questions

How long does it take to get a prescriptive easement in New York?

The period comes from case law: the Court of Appeals applies the statutory adverse-possession rules to easements by analogy, including the period in which the right ripens (Di Leo v. Pecksto Holding Corp., 1952). That period is 10 years under CPLR 212(a) and RPAPL 501, and the Appellate Division requires each element, including continuous use for the full 10 years, to be proven by clear and convincing evidence (Ciringione v. Ryan, 2d Dep't 2018).

How can a New York landowner keep a neighbor's use from becoming a prescriptive easement?

New York case law treats permitted use as non-adverse: where permission can be implied from the beginning, no adverse use arises until a hostile right is asserted and made known to the owner (Hassinger v. Kline, 2d Dep't 1983). Once open, uninterrupted and undisputed use of a right of way is shown (by clear and convincing evidence, under Ciringione v. Ryan, 2d Dep't 2018), the owner bears the burden of showing the use was by license (Di Leo, quoting earlier authority).

What happens if my property is landlocked in New York?

Highway Law § 300 and the sections after it let an owner apply in writing to the town superintendent for a private road; a jury decides whether it is necessary and assesses damages, which the benefited party pays before the road is opened or used, unless the jury certifies that a public highway change caused the necessity, in which case the town pays and the damages are refunded to the applicant (§ 310; N.Y. Const. art. I, § 7(c)). The jury's decision becomes final unless a party moves in county court within 30 days after it is filed in the town clerk's office (§ 312). A common-law easement by necessity requires clear and convincing proof of former unity of title and absolute necessity at severance (Simone v. Heidelberg, 2007).

Does an easement end if it is not used in New York?

Not by nonuse alone when the easement was created by grant: the Court of Appeals held that nonuse, no matter how long continued, can never in and of itself extinguish it. Such an easement ends by abandonment (intent plus an overt act), conveyance, condemnation or adverse possession (Gerbig v. Zumpano, 1960).

Can a landowner move an easement in New York without consent?

In Lewis v. Young (1998), the Court of Appeals held that under the particular circumstances presented the landowner could move a right of way, so long as the easement holder's right of access and ingress was not impaired. The decision is tied to its facts.

Can a neighbor refuse access for repairs in New York?

If repairs or improvements cannot be made in a commercially reasonable manner without entering adjoining land and permission is refused, RPAPL 881 lets the owner seek a court license to enter, unless the adjoining property is owned, leased or occupied by a state entity. Refusal includes more than one certified-mail notice left unanswered for 60 days, and the licensee is liable for actual damages and must reasonably compensate the neighbor for loss of use and enjoyment, including diminution in value.

Can New York take property for a private development project?

The Court of Appeals has upheld takings for projects carried out by private parties where the agency found the area blighted: a mixed-use development to be undertaken by a private developer in downtown Brooklyn (Goldstein, 2009) and a new Columbia University campus (Kaur, 2010). The EDPL test is whether the acquisition will serve a public use, benefit or purpose (EDPL 207(C)(4)). The Court of Appeals has treated an agency's findings supporting a taking as entitled to deference (Kaur, 2010) and declined to intervene where findings were not made corruptly, irrationally or baselessly (Goldstein, 2009, quoting an earlier decision).

How long do I have to challenge an eminent domain taking in New York?

A petition to the Appellate Division must be filed within 30 days after the condemnor completes publication of its determination and findings (EDPL 207(A)). Where a hearing is required, the hearing notice must state that judicial review is limited to issues, facts and objections raised at the hearing (EDPL 202(C)(2)).

What is the deadline to file an eminent domain compensation claim in New York?

In state takings, within 3 years after service of the notice of acquisition or the vesting date, whichever is later, or a time the court fixes; missing it is deemed acceptance of the amount paid as full settlement (EDPL 503(A)). In other takings the court sets the date (EDPL 503(B)). In state takings, interest is suspended if no claim is filed within 6 months after accrual or personal service of the notice, whichever is later (EDPL 514(B)).

Is there a jury in New York eminent domain cases?

For the compensation claim, EDPL 501 directs the supreme court to hear acquisition claims without a jury or referral to a referee or commissioners, and gives the Court of Claims exclusive jurisdiction over state acquisitions. The Highway Law private-road procedure is different: a jury decides necessity and damages there (Highway Law §§ 301, 307).

Does the government pay attorney fees in New York eminent domain cases?

The court may, in its discretion, award reasonable attorney, appraiser and engineer fees when the award is substantially above the condemnor's proof and the court deems it necessary for just and adequate compensation (EDPL 701). Reimbursement is mandatory when the condemnor abandons the acquisition, lacked authority, or took property while denying any taking and making no offer to settle (EDPL 702(B)-(C)).

Can I buy back condemned property in New York?

EDPL 406(A) gives the former fee owner a right of first refusal at fair market value at the time of the offer, but only where the property was taken in fee, the project was abandoned, the property has not been materially improved, and the condemnor would dispose of it for private use within 10 years of acquisition. After a partial taking in fee, the offer need be made only if the former owner still holds title to the contiguous remainder parcel. The former owner has 60 days after service of the notice to accept in writing.