Real Property Law

Co-Tenant's Possession Not Adverse

Russo Realty Corp. v. Orlando

NYLJ 6/26/06, p. 38, col. 1

AppDiv, Second Dept

(memorandum opinion)

In an action by co-tenant for partition and sale, defendant co-tenant appealed from Supreme Court's grant of summary judgment dismissing her adverse possession defense and counterclaim. The Appellate Division affirmed, concluding that her possession was not adverse to the co-tenant seeking partition.

Defendant co-tenant and her then husband originally acquired title to the premises as tenants by the entirety. In 1977, Russo acquired the husband's interest by sheriff's deed, and became a tenant in common subject to defendant-wife's right of survivorship. Defendant co-tenant was divorced in 1982, and defendant retained possession of the premises, paying all mortgage, tax, and maintenance expenditures. On numerous occasions, however, defendant-wife acknowledged Russo's status as a co-tenant. In 1996, Russo brought this action for partition and sale. Defendant counterclaimed, asserting title by adverse possession. Supreme Court awarded summary judgment to Russo.

In affirming, the Appellate Division started with the statutory presumption that a tenant in common in possession holds the property for the benefit of cotenants, and noted that the presumption only ceases after the expiration of 10 years. Moreover, in this case, defendant-wife did not commit any obvious or overt acts that were openly hostile to Russo's rights, and could not therefore contend that there had been an ouster of Russo, which would have triggered the statute of limitations. Because defendant-wife failed to produce evidentiary proof sufficient to raise any triable question of fact, Russo was entitled to summary judgment.

Co-Tenant's Possession Not Adverse

Russo Realty Corp. v. Orlando

NYLJ 6/26/06, p. 38, col. 1

AppDiv, Second Dept

(memorandum opinion)

In an action by co-tenant for partition and sale, defendant co-tenant appealed from Supreme Court's grant of summary judgment dismissing her adverse possession defense and counterclaim. The Appellate Division affirmed, concluding that her possession was not adverse to the co-tenant seeking partition.

Defendant co-tenant and her then husband originally acquired title to the premises as tenants by the entirety. In 1977, Russo acquired the husband's interest by sheriff's deed, and became a tenant in common subject to defendant-wife's right of survivorship. Defendant co-tenant was divorced in 1982, and defendant retained possession of the premises, paying all mortgage, tax, and maintenance expenditures. On numerous occasions, however, defendant-wife acknowledged Russo's status as a co-tenant. In 1996, Russo brought this action for partition and sale. Defendant counterclaimed, asserting title by adverse possession. Supreme Court awarded summary judgment to Russo.

In affirming, the Appellate Division started with the statutory presumption that a tenant in common in possession holds the property for the benefit of cotenants, and noted that the presumption only ceases after the expiration of 10 years. Moreover, in this case, defendant-wife did not commit any obvious or overt acts that were openly hostile to Russo's rights, and could not therefore contend that there had been an ouster of Russo, which would have triggered the statute of limitations. Because defendant-wife failed to produce evidentiary proof sufficient to raise any triable question of fact, Russo was entitled to summary judgment.