The New Jersey Appellate Division recently reversed a trial court’s summary judgment order and found that there were genuine issues of material fact regarding whether plaintiff had a perpetual parking easement on defendant’s property. See Congregation Sons of Israel v. Congregation Meorosnosson, Inc., 2019 WL 2591309 (N.J. Super. Ct. App. Div. June 25, 2019).
In 1962, defendant’s predecessor executed a deed conveying a portion of its property to plaintiff. In 1963, the predecessor signed an agreement with plaintiff that stated: “[the predecessor] agrees to permit [plaintiff] to utilize for parking purposes the vacant lands it owns on Madison Avenue and also on Sixth Street and to permit use of lands on Sixth Street for boiler room use and for a water cooling tower.” Defendant purchased the property in 2010, and plaintiff brought this action regarding its alleged easement. The trial court granted plaintiff’s motion for partial summary judgment, finding that it had a perpetual easement on defendant’s property pursuant to the 1963 agreement.
On appeal, the Court reversed. First, the Court found that there are issues of fact regarding whether the 1963 agreement created an easement because the term “agrees to permit . . . to utilize for parking purposes” is ambiguous as to what type of right was conferred. Second, the Court found that even if the agreement did create an easement, there were factual questions about whether it was perpetual. The Court noted that other areas of the agreement used words like “perpetually” or “shall [n]ever”. The paragraph at issue, however, “does not include language establishing a right in perpetuity nor does it include language limiting performance to [the predecessor] when the drafters demonstrated they were capable of making these distinctions.” Finally, even if the agreement created a perpetual easement, the Court found that there was an issue of material fact as to whether plaintiff had abandoned the easement by failing to use it for parking until recently. Thus, the Court vacated the summary judgment order and remanded.