New Jersey Appellate Division Reverses Summary Judgment Decision Regarding the Termination of a Cross-Easement by Estoppel

The New Jersey Appellate Division recently reversed a lower court’s decision granting summary judgment to defendant and instead held that there were issues of fact regarding whether the easement between plaintiff’s and defendant’s neighboring properties was terminated by estoppel.  See 1701 E. Main, LLC v. Wawa, Inc., 2017 WL 4531772 (N.J. Super. Ct. App. Div. Oct. 11, 2017).  In the case, plaintiff’s predecessor-in-interest owned property on which it operated a gas station, and which was bordered on two sides by defendant’s property on which defendant operated a convenience store.  In 1972, the parties entered a written agreement through which they “both agree[d] to keep the adjoining perimeter of [their] premises free from obstructions in order to permit each other’s customers ingress and egress across said property lines from the two business operations.”  This agreement was never recorded. 

In 2001, defendant began negotiations to purchase plaintiff’s predecessor’s property, but they could not agree to terms.  Defendant then advised plaintiff’s predecessor that it remained interested in purchasing the property, but would build gas pumps on its own property if an agreement could not be reached.  The parties never reached an agreement and, as part of defendant’s construction, it built curbs along the parties’ boundary.  Two years later, the predecessor’s principal died and plaintiff took title to the property.  Around 2012, plaintiff’s principal visited the property and discovered the curbs, which prompted the lawsuit.  Defendant argued that plaintiff and/or its predecessor had known about the curbs since their construction and had not objected and, therefore, the easement was terminated by estoppel.  The trial court agreed and granted defendant summary judgment. 

On appeal, the Appellate Division reversed.  First, it held that “a servitude will be deemed modified or terminated when the party possessing the servitude’s benefit not only ‘communicates . . . by conduct, words, or silence, an intention to modify or terminate the servitude,’ but also communicates ‘under circumstances in which it is reasonable to foresee that the burdened party will substantially change position on the basis of that communication, and the burdened party does substantially and detrimentally change position in reasonable reliance on that communication.’”  Nonetheless, it found that the question of whether plaintiff’s or its predecessor’s silence conveyed an intention to modify or terminate the easement was a fact-sensitive question to be determined at trial.  Second, the Court found that there was no evidence that either plaintiff’s principal or its predecessor’s principal visited the property or were aware of the curbs until 2012.  Accordingly, the trial court’s decision was reversed.

For a copy of the decision, please contact Michael O’Donnell at, Michael Crowley at or Clarissa Gomez at