Partner Kenneth Lehn successfully defended an industrial property owner in Bergen County against a claim by an adjacent property owner to a prescriptive easement to enter onto the former’s property to facilitate access to loading docks at the adjacent owner’s building based on 30 years of such access.
To ameliorate flooding and hazardous conditions mandated by the New Jersey Sports & Exposition Authority, Winne Banta Basralian & Kahn’s client, following a plan approved by the Authority, had installed improvements, including a one-foot-high curb with a built-in filter to direct the excess water to a drain and sump pump to alleviate the flooding. This eliminated the neighbor’s ability to drive tractor trailers onto the law firm’s client’s property to facilitate access to the neighbor’s loading docks, resulting in a claim to compel removal of the improvements and permit continued access.
The trial court dismissed the claims because the historic access had been allowed with the permission or consent of Winne Banta Basralian & Kahn’s client or its predecessors and, thus, was not adverse or hostile to its ownership rights, as required to create a prescriptive easement (that is, a permanent right to drive onto the client’s property). The Appellate Division affirmed on January 16, 2024.