Real Property Law

Adverse Possession

Walling v. Przyblo

NYLJ 6/14/06, p. 26, col. 1

Court of Appeals

(Opinion by G.B. Smith, J.)

In an action to quiet title by adverse possession, true owners appealed from the Appellate Division's reversal of County Court's denial of adverse possessors' summary judgment motion. The Court of Appeals affirmed, holding that adverse possessors had acquired title even if they initially improved the land with knowledge of true owners' superior title.

In 1986, adverse possessors purchased a parcel of land. In 1989, true owners purchased the neighboring parcel. Both sets of owners purchased the respective parcels in an unimproved state, and both eventually built homes and swimming pools. In 1987, adverse possessors bulldozed a portion of true owners' side yard, and deposited fill and topsoil on the disputed area of true owner's land. Adverse possessors also dug a trench and installed piping to carry water from adverse possessor's eaves and downspouts, ultimately discharging water over the disputed parcel. In addition, adverse possessors mowed, watered, planted, and raked the disputed area. The lawn was fully cultivated before true owners moved into their home in 1992. In that year, adverse possessors also placed a 10-foot-long post on the disputed parcel, to which they affixed a bird house. In 2004, true owners conducted a survey and discovered that they held title to the disputed area. At that point, adverse possessors brought this quiet title action. County Court initially awarded summary judgment to adverse possessors, but, on motion to renew, denied summary judgment, finding that there were issues of fact about whether adverse possessors knew of true owners' title before making improvements on the land. The Appellate Division modified to award summary judgment to adverse possessors, and true owners appealed.

In affirming, the Court of Appeals rejected the argument that the 'claim of right' requirement for adverse possession cannot be met when the adverse possessor has actual knowledge of the true owner's right to the land occupied by the adverse possessor. The court held that conduct should prevail over knowledge, in light of the purpose of adverse possession doctrine, which is to clear disputed titles.

 

Environmental Contamination

Curry v. D'Onofrio

NYLJ 5/22/06, p. 34, col. 4

AppDiv, Second Dept

(memorandum opinion)

In an action by landowners against neighbors for damages due to environmental contamination, landowners appealed from the Supreme Court's judgment dismissing the complaint as time-barred. The Appellate Division reversed and reinstated the complaint, holding that the complaint was timely under the discovery rule of CPLR 214-c.

Neighbors discovered in June 2000 that an underground storage tank on their property was leaking. They contracted for removal of the tank and remediation of contaminated soil and groundwater on their property. That work, which required extensive excavation, was completed in late Septem-ber 2000. Three years later, in August 2003, landowners discovered a rust discharge and oily film on their driveway (located 10 feet from neighbors' boundary line). They also noticed clogging of their sump pump and hedges that appeared to be dying. A year later, in August 2004, when environmental contamination of their property had been confirmed, they brought this action for damages. Supreme Court dismissed the complaint as time-barred.

In reversing, the Appellate Divi-sion relied on CPLR 214-c, which provides a 3-year statute of limitations for latent injuries to person or property caused by exposure to harmful substances, and which begins to run on the date the injury is discovered or the date injury should have been discovered by a reasonably diligent plaintiff. In this case, the court concluded that landowners discovered the injury in 2003, and the court rejected as speculative neighbors' contention that landowners should have known of the contamination earlier, in light of the excavation of neighbors' parcel.

 

Subdivision Map

Nassau Point Property Owners Association, Inc. v. Tirado

NYLJ 5/22/06, p. 39, col. 4

AppDiv, Second Dept

(memorandum opinion)

In an action by property owners association for a declaration that it enjoys an easement over a disputed strip, and for an injunction requiring removal of trees from the strip, the association appealed from a Supreme Court order granting summary judgment to owners whose land abutted the disputed strip. The Appellate Division modified to search the record and award summary judgment to the association, holding that conveyance of lands with reference to a subdivision map showing a private road gives appurtenant owners an implied easement over the road.

Lots in the area were conveyed by reference to a subdivision map showing the disputed private road. The road, however, abuts the land of only two landowners. Those two landowners planted trees and built other structures that restricted access to the street by other residents of Nassau Point. When the property owners association brought this action, The Supreme Court awarded summary judgment to the two abutting owners, holding that because the association and its members did not own abutting land, the association had no interest in the disputed street, and no standing to maintain the action.

In modifying, the Appellate Divi-sion held that an implied easement over roads depicted on a subdivision map arises in favor of all appurtenant owners, not merely in favor of the more limited class of abutting owners. Here, because members of the association purchased by reference to a subdivision map depicting the disputed road, they acquired implied easements over the road, and were therefore entitled to summary judgment awarding them a permanent injunction restraining abutting owners from placing obstructions on the association's easement.

COMMENT

When a grantor subdivides his property and conveys an individual parcel with reference to a subdivision map showing private streets abutting the conveyed lot, courts typically hold that the grantee acquires an implied easement in those streets. In Parisi v. Adipietro, 21 A.D.3d 454, a property owner was held to have an easement over a private lane abutting his lot because his deed made reference to a subdivision map illustrating the lot and private street. And in Fischer v. Liebman, 137 A.D.2d 485, the court held that a property owner had an easement in the private road bounding his property because the deed specifically referred to the subdivision map and the road, even though the deed did not explicitly reserve an easement in the private road.

Because the existence of an implied easement depends on the grantor's intent at the time of the original conveyance, a property owner can only acquire an implied easement over the abutting streets if the original conveyance refers to the subdivision map. Whether an easement has been created depends on the grantor's intent at the time of the original conveyance, and the grantor's intent can be evidenced by the language of the original deed. In Palma v. Mastroianni, 276 A.D.2d 894, the court held that a property owner was not entitled to an implied easement in the private street abutting his land, even though a subdivision map depicting the street was filed prior to the conveyance, because the deed from the original grantor did not contain a reference to the subdivision, the street, or the map. See also Coccio v. Parisi, 151 A.D.2d 817. However, as long as the original conveyance references the subdivision map, the easement to abutting private streets may be implied even where a later grant does not refer to the subdivision map. For example, in Clegg v. Grasso, 186 A.D.2d 909, the court held that a property owner had an easement in private streets which his land abutted, even though there was no reference to a subdivision map in his deed. Because the original, common grantor made reference to the subdivision map in the original deeds and sold lots in accordance with the plan, the grantor intended that property owners have an easement in the private streets which their land abuts, even though the common grantor did not file the map.

Contrary to the holding in Tirado, the general rule is that the implied easement only extends to streets abutting a property owner's land , rather than every street in the map. For example, in De Ruscio v. Jackson, 164 A.D.2d 684, the court determined that an owner of land conveyed by reference to a subdivision map holds 'an easement by implication only over the street on which his property abuts, to the next intersecting streets, ie, an easement of access.' In Clegg, supra, the court held that the easement applies only to private streets in a subdivision that provide the most direct access to a public highway, and not to every road in the subdivision. And in Manhattan Beach Community v. Laboz, 224 A.D.2d 394, app. denied 88 N.Y.2d 806, property owners were denied an easement because their property did not abut the private way.

Adverse Possession

Walling v. Przyblo

NYLJ 6/14/06, p. 26, col. 1

Court of Appeals

(Opinion by G.B. Smith, J.)

In an action to quiet title by adverse possession, true owners appealed from the Appellate Division's reversal of County Court's denial of adverse possessors' summary judgment motion. The Court of Appeals affirmed, holding that adverse possessors had acquired title even if they initially improved the land with knowledge of true owners' superior title.

In 1986, adverse possessors purchased a parcel of land. In 1989, true owners purchased the neighboring parcel. Both sets of owners purchased the respective parcels in an unimproved state, and both eventually built homes and swimming pools. In 1987, adverse possessors bulldozed a portion of true owners' side yard, and deposited fill and topsoil on the disputed area of true owner's land. Adverse possessors also dug a trench and installed piping to carry water from adverse possessor's eaves and downspouts, ultimately discharging water over the disputed parcel. In addition, adverse possessors mowed, watered, planted, and raked the disputed area. The lawn was fully cultivated before true owners moved into their home in 1992. In that year, adverse possessors also placed a 10-foot-long post on the disputed parcel, to which they affixed a bird house. In 2004, true owners conducted a survey and discovered that they held title to the disputed area. At that point, adverse possessors brought this quiet title action. County Court initially awarded summary judgment to adverse possessors, but, on motion to renew, denied summary judgment, finding that there were issues of fact about whether adverse possessors knew of true owners' title before making improvements on the land. The Appellate Division modified to award summary judgment to adverse possessors, and true owners appealed.

In affirming, the Court of Appeals rejected the argument that the 'claim of right' requirement for adverse possession cannot be met when the adverse possessor has actual knowledge of the true owner's right to the land occupied by the adverse possessor. The court held that conduct should prevail over knowledge, in light of the purpose of adverse possession doctrine, which is to clear disputed titles.

 

Environmental Contamination

Curry v. D'Onofrio

NYLJ 5/22/06, p. 34, col. 4

AppDiv, Second Dept

(memorandum opinion)

In an action by landowners against neighbors for damages due to environmental contamination, landowners appealed from the Supreme Court's judgment dismissing the complaint as time-barred. The Appellate Division reversed and reinstated the complaint, holding that the complaint was timely under the discovery rule of CPLR 214-c.

Neighbors discovered in June 2000 that an underground storage tank on their property was leaking. They contracted for removal of the tank and remediation of contaminated soil and groundwater on their property. That work, which required extensive excavation, was completed in late Septem-ber 2000. Three years later, in August 2003, landowners discovered a rust discharge and oily film on their driveway (located 10 feet from neighbors' boundary line). They also noticed clogging of their sump pump and hedges that appeared to be dying. A year later, in August 2004, when environmental contamination of their property had been confirmed, they brought this action for damages. Supreme Court dismissed the complaint as time-barred.

In reversing, the Appellate Divi-sion relied on CPLR 214-c, which provides a 3-year statute of limitations for latent injuries to person or property caused by exposure to harmful substances, and which begins to run on the date the injury is discovered or the date injury should have been discovered by a reasonably diligent plaintiff. In this case, the court concluded that landowners discovered the injury in 2003, and the court rejected as speculative neighbors' contention that landowners should have known of the contamination earlier, in light of the excavation of neighbors' parcel.

 

Subdivision Map

Nassau Point Property Owners Association, Inc. v. Tirado

NYLJ 5/22/06, p. 39, col. 4

AppDiv, Second Dept

(memorandum opinion)

In an action by property owners association for a declaration that it enjoys an easement over a disputed strip, and for an injunction requiring removal of trees from the strip, the association appealed from a Supreme Court order granting summary judgment to owners whose land abutted the disputed strip. The Appellate Division modified to search the record and award summary judgment to the association, holding that conveyance of lands with reference to a subdivision map showing a private road gives appurtenant owners an implied easement over the road.

Lots in the area were conveyed by reference to a subdivision map showing the disputed private road. The road, however, abuts the land of only two landowners. Those two landowners planted trees and built other structures that restricted access to the street by other residents of Nassau Point. When the property owners association brought this action, The Supreme Court awarded summary judgment to the two abutting owners, holding that because the association and its members did not own abutting land, the association had no interest in the disputed street, and no standing to maintain the action.

In modifying, the Appellate Divi-sion held that an implied easement over roads depicted on a subdivision map arises in favor of all appurtenant owners, not merely in favor of the more limited class of abutting owners. Here, because members of the association purchased by reference to a subdivision map depicting the disputed road, they acquired implied easements over the road, and were therefore entitled to summary judgment awarding them a permanent injunction restraining abutting owners from placing obstructions on the association's easement.

COMMENT

When a grantor subdivides his property and conveys an individual parcel with reference to a subdivision map showing private streets abutting the conveyed lot, courts typically hold that the grantee acquires an implied easement in those streets. In Parisi v. Adipietro, 21 A.D.3d 454, a property owner was held to have an easement over a private lane abutting his lot because his deed made reference to a subdivision map illustrating the lot and private street. And in Fischer v. Liebman, 137 A.D.2d 485, the court held that a property owner had an easement in the private road bounding his property because the deed specifically referred to the subdivision map and the road, even though the deed did not explicitly reserve an easement in the private road.

Because the existence of an implied easement depends on the grantor's intent at the time of the original conveyance, a property owner can only acquire an implied easement over the abutting streets if the original conveyance refers to the subdivision map. Whether an easement has been created depends on the grantor's intent at the time of the original conveyance, and the grantor's intent can be evidenced by the language of the original deed. In Palma v. Mastroianni, 276 A.D.2d 894, the court held that a property owner was not entitled to an implied easement in the private street abutting his land, even though a subdivision map depicting the street was filed prior to the conveyance, because the deed from the original grantor did not contain a reference to the subdivision, the street, or the map. See also Coccio v. Parisi, 151 A.D.2d 817. However, as long as the original conveyance references the subdivision map, the easement to abutting private streets may be implied even where a later grant does not refer to the subdivision map. For example, in Clegg v. Grasso, 186 A.D.2d 909, the court held that a property owner had an easement in private streets which his land abutted, even though there was no reference to a subdivision map in his deed. Because the original, common grantor made reference to the subdivision map in the original deeds and sold lots in accordance with the plan, the grantor intended that property owners have an easement in the private streets which their land abuts, even though the common grantor did not file the map.

Contrary to the holding in Tirado, the general rule is that the implied easement only extends to streets abutting a property owner's land , rather than every street in the map. For example, in De Ruscio v. Jackson, 164 A.D.2d 684, the court determined that an owner of land conveyed by reference to a subdivision map holds 'an easement by implication only over the street on which his property abuts, to the next intersecting streets, ie, an easement of access.' In Clegg, supra, the court held that the easement applies only to private streets in a subdivision that provide the most direct access to a public highway, and not to every road in the subdivision. And in Manhattan Beach Community v. Laboz, 224 A.D.2d 394, app. denied 88 N.Y.2d 806, property owners were denied an easement because their property did not abut the private way.