Easement enforcement against property held in Irrevocable trust

[Dickie476]

Jurisdiction

New York

I own a property in New York state that was granted a right of way easement (written) by an adjoining property, in exchange for the adjoining property granting the easement my property granted an easement to allow the adjoining property to run a drainage pipe ( below surface) through my property ( same written easement as above), Under existing improvements to an output point outside my property boundary line. That drainage pipe has failed causing damage to my property and the improvements. The easement stipulates that the adjoining property must inspect, maintain and repair the drainage pipe and the improvements if damage occurs. All, attempts to resolve the issue have failed and since serving a complaint upon the adjoining property they have excavated a deep ditch across the driveway/right of way prevent my business and tenants from enjoying the ROW and conducting business typically as we would if the easement was not blocked. The complication arises as the adjoining property deed was transferred to a Irrevocable Inter vivos trust.

Question: do i have any hopers of collecting damages and does the property owner (Trust) essentially get to violate the easement without recourse?

 

[welkin]

If the easement is appurtenant and I would assume that it is, then it doesn't matter who owns either the dominant or servient estates. The rights you have been granted (to cross the neighboring property) has little to do with the easement you granted for the pipe and are enforceable against the trust.

If the trust doesn't repair and restore your property you may have to sue. Did you have an attorney send a cease and desist letter?

 

[zddoodah]

No one here has read the easement documents, and no one here is a real estate attorney in New York. That being the case, no one here can intelligently assess your chances of recovering monetary damages for whatever is occurring. You told us that you served a complaint and that doing so resulted in the easement holder starting to undertake repair work. Assuming you have an attorney in connection with the complaint you served, he/she is the best person to answer your question about monetary damages.

Did you have an attorney send a cease and desist letter?

The OP wrote that he/she served a complaint. The litigation process in New York is initiated by the service (not filing) of a complaint, so it would appear that the OP initiated litigation. We'll see if the OP comes back and confirms or clarifies.

 

[Dickie476]

If the easement is appurtenant and I would assume that it is, then it doesn't matter who owns either the dominant or servient estates. The rights you have been granted (to cross the neighboring property) has little to do with the easement you granted for the pipe and are enforceable against the trust.

If the trust doesn't repair and restore your property you may have to sue. Did you have an attorney send a cease and desist letter?

Thank you! Yes a cease and desist letter was sent, a law suit commenced, and no reply. motion for default judgment entered and await court action. So.. do I have any ability to a) get a judgment and subsequent creditor lien against the deed given the deed is held in a trust and
b) can I even collect on the judgment as i understand forcing a sale is not likely as Irrevocable trusts are typical to protect assests from creditor and judgments. I do not believe the trustee or the trustees personal assets are subject to lien.

 

[Dickie476]

No one here has read the easement documents, and no one here is a real estate attorney in New York. That being the case, no one here can intelligently assess your chances of recovering monetary damages for whatever is occurring. You told us that you served a complaint and that doing so resulted in the easement holder starting to undertake repair work. Assuming you have an attorney in connection with the complaint you served, he/she is the best person to answer your question about monetary damages.



The OP wrote that he/she served a complaint. The litigation process in New York is initiated by the service (not filing) of a complaint, so it would appear that the OP initiated litigation. We'll see if the OP comes back and confirms or clarifies.

To clarify, the easement holder did not start repair work.... the easement holder blocked the right of way easement in retaliation for being served a complaint related to the drainage pipe easement damage. Yes I have an attorney handling the action. i was looking to understand how deeds held by Irrevocable trusts can impact judgment collect or liens on deeds held in such trusts.

 

[Zigner]

To clarify, the easement holder did not start repair work.... the easement holder blocked the right of way easement in retaliation for being served a complaint related to the drainage pipe easement damage. Yes I have an attorney handling the action. i was looking to understand how deeds held by Irrevocable trusts can impact judgment collect or liens on deeds held in such trusts.

You are represented. The person in the best position to ask your questions of is your attorney.

 

[zddoodah]

i was looking to understand how deeds held by Irrevocable trusts can impact judgment collect or liens on deeds held in such trusts.

If the judgment is against the trust, it doesn't matter if the trust is revocable or irrevocable.