Real Property Law

Court of Appeals

(Opinion by Smith, J.)

In an action by tax sale purchaser to quiet title to the subject parcel, prior landowner appealed from the Appellate Division's affirmance of Supreme Court's grant of summary judgment to tax sale purchaser. The Court of Appeals affirmed, holding that the county's efforts to provide prior landowner with notice of a tax delinquency were constitutionally adequate.

Prior landowner purchased the subject parcel — 20 acres of vacant land — in 1983. At that time, she reported her address to the County Clerk as Blaisdell Road, and the County Clerk forwarded that address to the Town Assessor, who sent tax bills to landowner at that address each year through 1998. Prior landowner paid taxes for each of those years, except for 1996. In 1991, however, landowner moved to Lester Drive. She alleges that in 1992, when she paid her taxes, she sent the town a letter notifying it of a change in address. Nevertheless, the town continued sending tax bills to the old address, and landowner continued to pay those bills until 1996, when the town apparently did not receive payment (Landowner contends that a check was mailed, and never cashed). The town informed the county that the taxes remained unpaid, and the county sent a reminder. In 1997, the town sent a bill to the old Blaisdell Road address, and landowner paid the taxes. She sent the check in an envelope that included her new Lester Drive address, but did not ask the town to update the address. The county then filed a petition of foreclosure for the 1996 taxes, and mailed a notice to prior landowner at the Blaisdell Road address; the notice was returned as “not deliverable as addressed.” In January 1998, the town sent landowner a bill for the 1998 taxes. The bill was sent to the older Blaisdell Road address. The face of the bill notified landowner, in capital letters, to “please see back of bill regarding previous taxes due.” The back of the bill indicated that taxes remained due and owing, and that failure to pay all taxes would result in loss of the property. Landowner paid the 1998 bill, but did not inquire about past due amounts. In February 1998, after the statutory redemption period expired, the county brought a motion for a default judgment. Landowner apparently did not receive notice. In June of that year, the county sold the property to Kennedy at a public auction for $8000, retaining the surplus. Kennedy then brought this quiet title action. Prior landowner resisted, contending that the tax sale was invalid because she had received improper notice of the taxes due, and of the auction sale. Supreme Court granted summary judgment to Kennedy, and a divided Appellate Division affirmed.

In affirming, the Court of Appeals noted that section 1125 of the Real Property Tax Law requires notice by ordinary mail to owners “whose name and address are reasonably ascertainable from the public record.” Here the court indicated that prior landowner had not established that a search of the public record would have revealed her new address. In the court's view, a reasonable search of the public record does not require searching voting records, motor vehicle records, or the Internet. In addition, the court concluded that the town was not required to examine checks and envelopes sent to the town in order to discover landowner's address. As a result, the court concluded that the town had complied with both the New York statute and with due process standards. Hence, the court quieted title in purchaser at the auction sale.

COMMENT

See article by Stewart Sterk

No Easement to Prevent New Building from Blocking Windows

Chatsworth Realty 344 LLC v. Hudson Waterfront Co.

NYLJ 3/10/03, p. 21, col. 1

Supreme Ct., N.Y. Cty

(Lebedoff, J.)

In an action by owner of an existing building to enjoin construction of a neighboring building in a way that would block the existing building's access to light and air, developer of the neighboring building moved to dismiss. The court granted developer's motion, holding that owner of the existing building had not established an easement or other property interest in the disputed strip of land.

The existing building has been the westernmost building on West 72nd Street since its construction in 1902. The building's western wall was built atop a retaining wall owned and constructed by the neighboring owner, a railroad company. In 1899, the railroad company had granted an easement to permit construction atop the retaining wall. Developer, which has succeeded to the interest of the railroad company, now plans to build a new building west of the existing building. The proposed building would, at various points, extend closer to the existing building than 8 feet. As a result, some of the rooms in the existing building would no longer be habitable under current law. The owners of the existing building contend that they have acquired an easement over a 3-foot strip of land adjoining its parcel, and therefore seek to enjoin construction over that strip.

In dismissing the complaint, the court emphasized that the owner of the existing building had produced no documentary evidence to support its claim to an easement over the strip. The court further emphasized that an owner who builds overlooking an adjacent plot acquires no right to prevent his neighbor from building on that adjacent plot.

COMMENT

New York has long rejected the common law “ancient lights” doctrine that grants implied easements of light and air. In Pica v. Cross County, 259 A.D. 128 the court upheld defendant corporation's remodeling of two buildings that extinguished air and light access which plaintiff owner's adjacent building had previously enjoyed. A prior owner had built three buildings on a common parcel of land. Once ownership had been separated, owner of one building challenged neighboring owner's right to remodel another in a way that reduced access to light and air. The court noted that recognition of implied air and light easements would disrupt alienability and adequate development of land. Furthermore, courts have suggested that air and light easements can never be acquired through prescription since use and enjoyment of air and light by an adjacent party is, by nature, not adverse because it does not preclude an owner from simultaneous enjoyment of his land. See Landgray Associates v. 450 Lexington Venture 788 F. Supp. 776 (S.D.N.Y.).

Although many New York courts have, by contrast, recognized express grants of light and air easements, there has been little discussion of language sufficient to create such easements. The Pica court did note, however, that a deed with language conveying, in general terms, all “rights, privileges, and appurtenances pertaining to the premises conveyed” does not meet the standard of an express grant. Moreover, even a grant to construct a specific structure whose very purpose is the enjoyment of light and air is insufficient evidence of intent to grant an easement to light and air. In Lafayette Auvergne Corporation v. 10243 Management Corporation, 35 N.Y.2d 834 plaintiff tenant acquired leasehold to a portion of land demised for operation as a restaurant and bar. The parcel in question was subject to an express alterations agreement authorizing installation of a skylight over the premises' kitchen. The court held that plaintiff could not enjoin defendant landlord from developing his remaining land and thereby threatening enjoyment of the skylight, as the alterations agreement merely provided for the skylight's construction and contained no specific pledge with respect to unhindered enjoyment of any air and light the skylight might provide.

Conveyance of Lots Reinstates Covenants

Realis Development v. LLC v. Neuberger

NYLJ 2/19/03, p. 29, col. 5

Supreme Ct., Westchester Cty

(Lefkowitz, J.)

In an action by developer for a judgment declaring that it is not bound by a restrictive covenant limiting use of its property to “one residence”, both developer and neighbors sought summary judgment. The court granted neighbors' summary judgment motion, concluding that although conveyance of all of the restricted land to the same owner extinguished the original covenants, subsequent conveyance of lots “subject to” the covenant re-imposed the restriction.

On August 10, 1931, George Allen conveyed a parcel of land to Sarah DuBois subject to a covenant permitting only “one residence” to be constructed on the DuBois land. Three months later, Allen filed a subdivision map dividing his retained land into 32 lots. One of those lots was adjacent to the land previously conveyed to DuBois. Allen retained his lots until his death. When Allen died in 1939, his estate representatives executed a deed to one of the 32 lots to W. Everett Orser, subject to a covenant restricting use of the lot to “one residence.” Later the same month, the estate representatives conveyed the remaining 31 lots to Orser, subject to the same restriction. Over time, Orser made various conveyances of individual lots. All but two of the conveyances specified that they were made “subject to covenants and restrictions of record.” Developer acquired title to 19 of the 32 lots, and now seeks to build multiple-family housing (which is permitted by the current zoning ordinance). Developer brought this action for a declaration that the covenants were not applicable to its proposed use. Neighboring landowners counterclaimed for a declaration that the restrictions are still in effect.

In granting summary judgment to neighbors, the court first rejected neighbors' argument that successors-in-interest to the DuBois property were entitled to enforce the restrictions, concluding that there was not a common grantor to DuBois and Orser, and that no promise to DuBois was made by the Allen executors when they conveyed the parcels to Orser. The court also conceded that when ownership of all lands subject to a restrictive covenant are owned by a single person, there is a merger of interests and the owner is free of the restriction. The court then concluded, however, that when Orser conveyed individual parcels “subject to covenants and restrictions of record,” Orser continued or reimposed the restriction. As a result, developer was not bound by the restriction. The court also rejected developer's argument that the “one residence” restriction was susceptible to permitting multiple-family housing. As a result, the court granted summary judgment to the neighbors.

Customer Use of Easement: Servient Owner vs. Dominant Owner

Hoeffner v. Frank, Inc.

NYLJ 2/18/03, p. 30, col. 6

AppDiv, Second Dept

(memorandum opinion)

In dominant owner's action to enjoin obstruction of an easement, dominant owner appealed from Supreme Court's dismissal of the complaint. The Appellate Division reversed and reinstated the complaint, holding that Supreme Court had improperly dismissed the complaint despite the absence of a motion requesting that relief.

Dominant owner purchased his single-family home in 1997. Since that time, he has used a 10-foot wide easement over the land of servient owner, who has leased the land for use as a convenience store. Dominant owner brought this action to enjoin obstruction of the easement, contending that servient owner and its tenant had permitted customer vehicles and delivery trucks to park on the easement, obstructing dominant owner's access. Dominant owner also sought a preliminary injunction. Servient owner responded by noting that it had placed “No Parking” signs on the easement, and had painted a “No Parking” sign on the roadway itself. Supreme Court denied the preliminary injunction, concluding that servient owner could not take any other reasonable steps to prevent obstruction of the easement. Although servient owner had not moved for dismissal of the complaint, Supreme Court dismissed the complaint on the merits without providing any notice of its intention to do so. Dominant owner appealed.

The Appellate Division held that Supreme Court had properly denied a preliminary injunction because dominant owner had not shown a clear right to that relief. But the Appellate Division held that Supreme Court should not have dismissed the complaint. In particular, the court noted that the grant of an easement carries with it the rights necessary to effectuate that easement's enjoyment. Here, the court concluded that trial was necessary to determine whether parking on the easement was more than de minimis interference with the easement, and to determine what reasonable means, if any, are available to enforce dominant owner's use of the easement if the interference is not de minimis.

COMMENT

A servient owner must refrain from unreasonably interfering with the dominant owner's use of the easement. Green v. Mann, 237 A.D.2d 566. A permanent impediment to use of an easement is an unreasonable interference. In Green v. Mann, the installation of a bulkhead by a servient owner destroyed dominant owner's access to a lake. The court ordered servient owner to remove the obstruction and restore the lake access to its previous condition.

Not all obstructions, constitute unreasonable interference. In cases such as Sabella v. Fifth Avenue Corp., 250 A.D.2d 506, and Meyerson v. Pasquale, 33 Misc. 2d 927, the servient owner erected gates that obstructed the use of the dominant owner's easement. In these cases, courts held that the interference would not be “unreasonable” as long as the dominant owner maintained control over the gate by either having a free-swinging gate as in Meyerson or by providing a key to the dominant owner as in Sabella.

By contrast, in Hoeffner the dominant owner does not retain any control over the removal of the cars parked by guests of the servient owner. Although there is no New York authority on point, other courts have concluded that when employees of a servient owner park cars on the easement, the servient owner has unreasonably interfered with use of the easement. Thus, in City of Los Angeles v. Ingersoll-Rand Company, 57 Cal. App. 3d 889 (1976 Cal. App.), cars blocking a right of way were found to be unreasonable interference unless servient owner arranged for the cars to be moved whenever the dominant owner requested.

Contract Vendee May Not Enjoin Transfer to Purchaser At Foreclosure Sale

Krueger v. Benigno

NYLJ 2/19/03, p. 28, col. 1

Supreme Ct., Richmond Cty

(Lebowitz, J.)

In an action by contract vendees to enjoin transfer of real property sold at a foreclosure sale, contract vendees sought a preliminary injunction. The court denied the preliminary injunction, concluding that contract vendees had not demonstrated a likelihood of success on the merits because their contract was expressly made contingent on seller obtaining title in the foreclosure proceeding.

On October 27, 1998, contract vendees signed a contract of sale with Salvatore Benigno, by the terms of which Salvatore agreed to sell the property for $200,000. The sale contract represented that Salvatore was a mortgagee in possession and in the process of foreclosure. The sale contract also provided that the transaction was “contingent upon Seller obtaining title and the end of foreclosure process.” Contract vendees then sold their own home and moved into the subject property with Salvatore's permission, and have been paying $700 per month in rent to Salvatore's wife, Ivy, since that time. In fact, Ivy, not Salvatore, was the mortgagee in possession. In November 2001, Salvatore advised contract vendee's lawyer that there was “no end in sight” to the foreclosure action and tried to cancel the sale contract. Contract vendees refused to accede to the cancellation. In November 2002, contract vendees learned that an auction sale was to be held. One of contract vendees attended the auction sale, at which the property was sold to a third party, Cassale, for $270,000. Ivy Benigno's lawyer had bid $265,000 at the sale, but the bid was unsuccessful. At that point, contract vendees brought this action to enjoin the transfer to Cassale, and sought a preliminary injunction.

In denying the preliminary injunction, the court noted that the foreclosure proceeding was commenced, and the notice of pendency filed, before contract vendees entered into the contract of sale. As a result, contract vendees were not entitled to notice in the foreclosure action. Moreover, the court concluded that even if Salvatore Benigno misled contract vendees in some way, the foreclosure sale purchaser, Cassale, was more innocent than contract vendees because he was an innocent purchaser for value. The court found no reason to tie up his sale, particularly in light of the sale contract's provision making the agreement contingent upon seller obtaining title to the property.

COMMENT