Real Property Law

Right to Redeem Extinguished By Foreclosure Sale

Norwest Mortgage, Inc. v. Brown

NYLJ 12/22/06, p. 31, col. 6

AppDiv, Second Dept

(memorandum opinion)

In a mortgage foreclosure action, successful bidder at the foreclosure sale appealed from Supreme Court's order restraining bidder from selling the subject property and, in effect, vacating the foreclosure sale. The Appellate Division reversed and denied the motion to vacate the foreclosure sale, holding that bidder was not bound by a temporary restraining order of which he was unaware.

Mortgagors defaulted on their mortgage in 1998. After five bankruptcies and three judgments of foreclosure, a sale was scheduled for Aug. 5, 2004. The day before the sale, mortgagors obtained from a Supreme Court justice an order to show cause and temporary restraining order staying transfer of the deed 'without prejudice to [mortgagors'] right of redemption.' The order directed mortgagors to serve the referee, and directed the referee to notify bidders at the sale. Although it is unclear whether the referee was served, the bidders were never notified of the order to show cause. The sale was conducted as scheduled. A month after the sale, successful bidder was served with the order to show cause. At mortgagors' behest, the Supreme Court vacated the foreclosure sale. Successful bidder appealed.

In reversing, the Appellate Division noted first that a mortgagor's right to redeem is generally extinguished by a foreclosure sale. The court went on to hold that even if a timely served order to show cause could extend mortgagors' right to redeem, it did not do so in this case because the bidders lacked notice of the order. The court emphasized that if bidders at foreclosure sales were bound to such conditions without notice of the conditions, it would inhibit bidding at foreclosure sales. Finally, the court held that if Supreme Court had equitable power to set aside the foreclosure sale, the equities did not favor mortgagors in this case, because they had sought to manipulate the system for years.

COMMENT

According to RPAPL ' 1341, a court must stay all proceedings upon a foreclosure judgment if, prior to the sale, the mortgagor pays into the court the amount due for principal and interest and the costs of the action, together with the expenses of the proceedings to sell, if any. However, where the mortgagor does not meet the requirements of RPAPL ' 1341, a court has no discretion to grant a stay. Thus, in NYCTL 1996-1 Trust v. LFJ Realty Corp., 307 AD2d 957, where, in a tax foreclosure proceeding, delinquent taxpayer failed to make payment into court, and failed to make a motion for a stay prior to the foreclosure sale, the court held that the taxpayer's right to redeem its property had expired.

A mortgagor's right to redeem real property subject to a foreclosure judgment is extinguished by the foreclosure sale. In GMAC Mortgage Corporation v. Tuck, 299 AD2d 315, the mortgagors claimed that their right of redemption extended past the foreclosure sale until the time the deed was delivered. In rejecting that claim, the Second Department stated that 'redemption is not permitted after a foreclosure sale, whether or not a deed has actually been delivered.' See also, United Capital Corp. v. 183 Lorraine Street Associates, 251 A.D.2d 400 (affirming the Supreme Court decision denying the right of defendants to redeem certain real property after the foreclosure sale). Once a foreclosure sale has taken place, a mortgagor may, in limited circumstances, obtain relief by seeking to vacate the sale. A court, in the exercise of its equitable powers, has the discretion to set aside a judicial sale where fraud, collusion, mistake, or misconduct casts suspicion on the fairness of the sale. However, the case law suggests that, absent circumstances that shock the conscience, courts are unlikely to vacate the sale. For example, in Provident Savings Bank v. Bordes, 244 AD2d 470, the court held that a sale price equivalent to the mortgage balance plus sale expenses, which was over 50% of the defendants' appraised value of the property, was not so unconscionably low so as to warrant vacatur of the sale. Similarly, in Federal Nat. Mortg. Ass'n v. New York Financial & Mortg. Co., Inc., 222 AD2d 647, the unilateral mistake of the mortgagor's counsel as to the location of the foreclosure sale did not provide a sufficient basis for invalidating the sale where the appellant's counsel was served with the referee's notice of sale, which contained the street address of the courthouse where the sale was to be held, and the sale was conducted in accordance with lawful procedure.

 

Neither Mistake Nor Knowledge Defeats Adverse Possession Claim

Hall v. Sinclaire

NYLJ 12/22/06, p. 33, col. 2

AppDiv, Second Dept

(memorandum opinion)

In an action for a judgment declaring that a portion of neighbors' driveway encroaches on landowner's land, neighbors appealed from Supreme Court's judgment awarding the disputed portion to landowner and authorizing landowner to remove the encroachment. The Appellate Division reversed, holding that neighbors had acquired title to the disputed area by adverse possession.

Until 1968, landowner's parcel and neighbors' parcel were a single parcel on which a nursing home was located. A semi-circular driveway ran through the parcel and, at one point, looped into a circular drive. When the property was divided into two parcels, the property line divided the driveway through a portion of the circular drive. Most of the circular drive remained on neighbors' parcel, but a 117-square-foot piece of the circular drive was located on landowner's parcel. In1977, the predecessors-in-interest of the current parcels executed a release of their respective interests to use the portion of the driveway located on the other's land. The parties also agreed to remove a section of the semi-circular driveway in order to divide it into two parts, and to plant in the removed section. The circular drive remained intact, however, and neighbor continued to use the whole of the circular drive, and to maintain it. When neighbors purchased their parcel in 2001, they were made aware of the encroachment. When they built a six-foot-tall fence around the edge of the circular drive, landowner brought this action, and Supreme Court awarded judgment to landowner.

In reversing, the Appellate Division noted that the record did not support any inference that occupation of the disputed portion of the circular drive was by permission as a matter of willing accord an neighborly accommodation. The court also noted that a mistake by neighbors' predecessors about the actual location of the property line would not defeat their adverse possession claim. Finally, the court emphasized that even if neighbors were aware that the disputed area was actually owned by landowner, that knowledge would not defeat their adverse possession claim. As a result, the court held that neighbors had acquired title to the disputed area by adverse possession.

 

Deed Should Not Be Treated As Mortgage

Thomson v. Daisy's Luncheonette Corp.

NYLJ 12/20/06, p. 26, col. 1

Supreme Ct., Kings Cty

(Rivera, J.)

Transferor of a deed brought an action against transferees, alleging that transferees improperly treated a loan transaction as a sale, and seeking damages. The Supreme Court, after a non-jury trial, dismissed the complaint, concluding that transferor had failed to establish that the transaction was intended to create a mortgage rather than a transfer of fee title.

Transferor and Gluck owned the subject property, encumbered by two mortgages held by Mannino, and by a tax lien. Faced with notice of a tax foreclosure sale, transferor asked Mannino for financial help in satisfying the tax lien. Mannino was not interested in providing financing, but spoke to Faselis, an associate who is the principal of Daisy's Luncheonette Corp. Faselis was not interested in lending money to transferor, and when Mannino reported that fact to transferor, transferor asked whether Mannino knew of a prospective purchaser who would pay enough to leave transferor with some cash. When Faselis expressed interest in a purchase, Faselis' lawyer prepared a bargain and sale deed and a contract of sale permitting transferor to repurchase at a future date. Faselis, the lawyer, and transferor then met in the lawyer's office to execute the documents. The parties waited for transferor's lawyer, but when it became apparent that no lawyer would appear for transferor, Faselis' lawyer asked the parties to leave and expressed unwillingness to participate in transactions with transferor if transferor was unrepresented by counsel. Faselis and transferor met, later in the day, at Mannino's apartment, and executed the deed and the contract of sale, which called fo tranferor to pay a purchase price of $50,0000, with a down payment of $5,000 and a closing date of May 15, 2003. The deed was subsequently recorded. Transferor never paid the down payment on the sale contract, and never took any steps to close on the sale contract. On Sept. 5, 2003, Daisy transferred the property to Brunt. Transferor now contends that the arrangement was in effect a loan, and that she remained the owner of the premises.

In dismissing the complaint, the court emphasized that a deed the heavy presumption that a deed absolute on its face is what it purports to be. The court noted a conflict in testimony between transferor and Faselis, but also noted that transferor had not produced testimony from Gluck, co-owner of the premises and father of transferor's child, suggesting that an adverse inference might be drawn from Gluck's failure to testify. Moreover, the court emphasized that transfer had produced no evidence of the terms of the alleged mortgage, and in particular, had introduced no evidence about the interest rate or the terms of repayment. On these facts, the court concluded that the deed could not be treated as a mortgage.

Water Conditions Present Questions of Fact

Congregation B'Ni Jehuda v. Hiyee Realty Corp.

NYLJ 1/2/07, p. 30, col. 5

AppDiv, First Dept.

(memorandum opinion)

In landowner's action against neighbor for property damages suffered as a result of negligence, trespass, and nuisance, neighbor appealed from the Supreme Court's grant of summary judgment to plaintiff-landowner. The Appellate Division modified to deny the summary judgment motion, holding that issues of fact were presented about neighbor's responsibility for water conditions on landowner's property.

Plaintiff landowner alleged water damage to its premises resulting from construction on neighbor's property. Based on testimony by plaintiff-landowner's expert, the Supreme Court awarded summary judgment to landowner. Neighbor appealed.

In modifying to reverse the summary judgment award, the Appellate Division noted that a landowner is not liable for damages to abutting property caused by the flow of surface water due to improvements on the land, so long as the improvements were made in good faith and for a rational purpose, and so long as the water is not drained onto the neighboring land by artificial means, such as by pipes or ditches. In this case, defendant-neighbor's expert submitted an affidavit asserting that he found no conditions, other than normal water penetration, that would cause damage to plaintiff landowner's property, and that the water penetration on plaintiff's land resulted from ground water in the rear of plaintiff's own parcel. His affidavit raised questions of fact challenging assertions by plaintiff-landowner's expert, requiring denial of the summary judgment motion.

City Has No Obligation to Maintain Easement over Parkway

Cypress Hills Cemetery v. City of New York

NYLJ 1/2/07, p. 34, col. 2
AppDiv, Second Dept

(memorandum opinion)

In an action by landowner for a declaration that it enjoyed an easement over the Jackie Robinson Parkway, and that the city was obligated to maintain that easement, landowner appealed from a Supreme Court judgment declaring that it had no easement. The Appellate Division modified, granting landowner summary judgment on its claim to an easement, but concluding that the city had no obligation to repair or replace the bridges over the parkway.

When the city condemned the land on which the parkway is built, the enabling statute authorized the cemeteries affected by the condemnation to build bridges over the parkway. That legislation also put the burden of building those bridges on the cemeteries, and imposed on the city no obligation to maintain the bridges. Nevertheless, the city built the initial bridges. In this action, landowner sought a declaration that it held easements over the parkway, and that the city was obligated to repair or replace the bridges. Supreme Court granted summary judgment to the city.

In modifying, the Appellate Division concluded first that landowner had established an easement implied by existing use at the time the parkway severed the cemetery land. But the court then noted that, absent an agreement to the contrary, the dominant owner bears the burden of maintaining an easement. In this case, the cemetery owner produced no evidence of such an agreement, and the municipal defendants established that there was no such agreement. As a result, the court declared that the city had no obligation to repair or rebuild the bridges.

 

Deed Estops Former Owner from Claiming Title

DeRoche v. John

NYLJ 1/17/07, p. 24, col. 1

Supreme Ct., Nassau Cty

(O'Connell, J.)

Title holder of the subject premises brought this ejectment action against former owner. The court, after a non-jury trial, determined that the deed from former owner to current title holder estopped the former owner from claiming title to the premises.

Former owner took title to the premises in 1995. Current title holder, DeRoche, had been living in the premises by January 2000, but was not paying rent. He apparently provided services, including digging out a cellar, for former owner and her husband, and made occasional mortgage payments. Former owner's husband suffered a stroke before 2004, disabling him from working and leading former owner to fall behind in mortgage payments. Former owner approached occupant with a plan by which title would be transferred to DeRoche, allegedly for a year, upon which title would be retransferred to former owner. Former owner was to pay $1800 per month plus utilities. In fact, however, DeRoche obtained a mortgage, and paid former owner $18,162.36 over and above the proceeds of the mortgage. That amount was used to satisfy former owner's mortgage. Former owner then made monthly payments to occupant for several months, but then stopped making them. DeRoche has continued to pay the mortgage. When DeRoche brought this action to eject former owner from the premises, former owner asserted that it would be inequitable for her to be excluded from the premises without compensation.

In concluding that current title holder is entitled to possession, the court concluded that the deed given by former owner to current title holder estopped former owner from asserting that she retained a reversionary interest in the property. The court also awarded current title holder rent at the rate of $1800 per month for each month during which former owner has been in occupancy without paying rent.

Right to Redeem Extinguished By Foreclosure Sale

Norwest Mortgage, Inc. v. Brown

NYLJ 12/22/06, p. 31, col. 6

AppDiv, Second Dept

(memorandum opinion)

In a mortgage foreclosure action, successful bidder at the foreclosure sale appealed from Supreme Court's order restraining bidder from selling the subject property and, in effect, vacating the foreclosure sale. The Appellate Division reversed and denied the motion to vacate the foreclosure sale, holding that bidder was not bound by a temporary restraining order of which he was unaware.

Mortgagors defaulted on their mortgage in 1998. After five bankruptcies and three judgments of foreclosure, a sale was scheduled for Aug. 5, 2004. The day before the sale, mortgagors obtained from a Supreme Court justice an order to show cause and temporary restraining order staying transfer of the deed 'without prejudice to [mortgagors'] right of redemption.' The order directed mortgagors to serve the referee, and directed the referee to notify bidders at the sale. Although it is unclear whether the referee was served, the bidders were never notified of the order to show cause. The sale was conducted as scheduled. A month after the sale, successful bidder was served with the order to show cause. At mortgagors' behest, the Supreme Court vacated the foreclosure sale. Successful bidder appealed.

In reversing, the Appellate Division noted first that a mortgagor's right to redeem is generally extinguished by a foreclosure sale. The court went on to hold that even if a timely served order to show cause could extend mortgagors' right to redeem, it did not do so in this case because the bidders lacked notice of the order. The court emphasized that if bidders at foreclosure sales were bound to such conditions without notice of the conditions, it would inhibit bidding at foreclosure sales. Finally, the court held that if Supreme Court had equitable power to set aside the foreclosure sale, the equities did not favor mortgagors in this case, because they had sought to manipulate the system for years.

COMMENT

According to RPAPL ' 1341, a court must stay all proceedings upon a foreclosure judgment if, prior to the sale, the mortgagor pays into the court the amount due for principal and interest and the costs of the action, together with the expenses of the proceedings to sell, if any. However, where the mortgagor does not meet the requirements of RPAPL ' 1341, a court has no discretion to grant a stay. Thus, in NYCTL 1996-1 Trust v. LFJ Realty Corp., 307 AD2d 957, where, in a tax foreclosure proceeding, delinquent taxpayer failed to make payment into court, and failed to make a motion for a stay prior to the foreclosure sale, the court held that the taxpayer's right to redeem its property had expired.

A mortgagor's right to redeem real property subject to a foreclosure judgment is extinguished by the foreclosure sale. In GMAC Mortgage Corporation v. Tuck, 299 AD2d 315, the mortgagors claimed that their right of redemption extended past the foreclosure sale until the time the deed was delivered. In rejecting that claim, the Second Department stated that 'redemption is not permitted after a foreclosure sale, whether or not a deed has actually been delivered.' See also, United Capital Corp. v. 183 Lorraine Street Associates, 251 A.D.2d 400 (affirming the Supreme Court decision denying the right of defendants to redeem certain real property after the foreclosure sale). Once a foreclosure sale has taken place, a mortgagor may, in limited circumstances, obtain relief by seeking to vacate the sale. A court, in the exercise of its equitable powers, has the discretion to set aside a judicial sale where fraud, collusion, mistake, or misconduct casts suspicion on the fairness of the sale. However, the case law suggests that, absent circumstances that shock the conscience, courts are unlikely to vacate the sale. For example, in Provident Savings Bank v. Bordes , 244 AD2d 470, the court held that a sale price equivalent to the mortgage balance plus sale expenses, which was over 50% of the defendants' appraised value of the property, was not so unconscionably low so as to warrant vacatur of the sale. Similarly, in Federal Nat. Mortg. Ass'n v. New York Financial & Mortg. Co., Inc. , 222 AD2d 647, the unilateral mistake of the mortgagor's counsel as to the location of the foreclosure sale did not provide a sufficient basis for invalidating the sale where the appellant's counsel was served with the referee's notice of sale, which contained the street address of the courthouse where the sale was to be held, and the sale was conducted in accordance with lawful procedure.

 

Neither Mistake Nor Knowledge Defeats Adverse Possession Claim

Hall v. Sinclaire

NYLJ 12/22/06, p. 33, col. 2

AppDiv, Second Dept

(memorandum opinion)

In an action for a judgment declaring that a portion of neighbors' driveway encroaches on landowner's land, neighbors appealed from Supreme Court's judgment awarding the disputed portion to landowner and authorizing landowner to remove the encroachment. The Appellate Division reversed, holding that neighbors had acquired title to the disputed area by adverse possession.

Until 1968, landowner's parcel and neighbors' parcel were a single parcel on which a nursing home was located. A semi-circular driveway ran through the parcel and, at one point, looped into a circular drive. When the property was divided into two parcels, the property line divided the driveway through a portion of the circular drive. Most of the circular drive remained on neighbors' parcel, but a 117-square-foot piece of the circular drive was located on landowner's parcel. In1977, the predecessors-in-interest of the current parcels executed a release of their respective interests to use the portion of the driveway located on the other's land. The parties also agreed to remove a section of the semi-circular driveway in order to divide it into two parts, and to plant in the removed section. The circular drive remained intact, however, and neighbor continued to use the whole of the circular drive, and to maintain it. When neighbors purchased their parcel in 2001, they were made aware of the encroachment. When they built a six-foot-tall fence around the edge of the circular drive, landowner brought this action, and Supreme Court awarded judgment to landowner.

In reversing, the Appellate Division noted that the record did not support any inference that occupation of the disputed portion of the circular drive was by permission as a matter of willing accord an neighborly accommodation. The court also noted that a mistake by neighbors' predecessors about the actual location of the property line would not defeat their adverse possession claim. Finally, the court emphasized that even if neighbors were aware that the disputed area was actually owned by landowner, that knowledge would not defeat their adverse possession claim. As a result, the court held that neighbors had acquired title to the disputed area by adverse possession.

 

Deed Should Not Be Treated As Mortgage

Thomson v. Daisy's Luncheonette Corp.

NYLJ 12/20/06, p. 26, col. 1

Supreme Ct., Kings Cty

(Rivera, J.)

Transferor of a deed brought an action against transferees, alleging that transferees improperly treated a loan transaction as a sale, and seeking damages. The Supreme Court, after a non-jury trial, dismissed the complaint, concluding that transferor had failed to establish that the transaction was intended to create a mortgage rather than a transfer of fee title.

Transferor and Gluck owned the subject property, encumbered by two mortgages held by Mannino, and by a tax lien. Faced with notice of a tax foreclosure sale, transferor asked Mannino for financial help in satisfying the tax lien. Mannino was not interested in providing financing, but spoke to Faselis, an associate who is the principal of Daisy's Luncheonette Corp. Faselis was not interested in lending money to transferor, and when Mannino reported that fact to transferor, transferor asked whether Mannino knew of a prospective purchaser who would pay enough to leave transferor with some cash. When Faselis expressed interest in a purchase, Faselis' lawyer prepared a bargain and sale deed and a contract of sale permitting transferor to repurchase at a future date. Faselis, the lawyer, and transferor then met in the lawyer's office to execute the documents. The parties waited for transferor's lawyer, but when it became apparent that no lawyer would appear for transferor, Faselis' lawyer asked the parties to leave and expressed unwillingness to participate in transactions with transferor if transferor was unrepresented by counsel. Faselis and transferor met, later in the day, at Mannino's apartment, and executed the deed and the contract of sale, which called fo tranferor to pay a purchase price of $50,0000, with a down payment of $5,000 and a closing date of May 15, 2003. The deed was subsequently recorded. Transferor never paid the down payment on the sale contract, and never took any steps to close on the sale contract. On Sept. 5, 2003, Daisy transferred the property to Brunt. Transferor now contends that the arrangement was in effect a loan, and that she remained the owner of the premises.

In dismissing the complaint, the court emphasized that a deed the heavy presumption that a deed absolute on its face is what it purports to be. The court noted a conflict in testimony between transferor and Faselis, but also noted that transferor had not produced testimony from Gluck, co-owner of the premises and father of transferor's child, suggesting that an adverse inference might be drawn from Gluck's failure to testify. Moreover, the court emphasized that transfer had produced no evidence of the terms of the alleged mortgage, and in particular, had introduced no evidence about the interest rate or the terms of repayment. On these facts, the court concluded that the deed could not be treated as a mortgage.

Water Conditions Present Questions of Fact

Congregation B'Ni Jehuda v. Hiyee Realty Corp.

NYLJ 1/2/07, p. 30, col. 5

AppDiv, First Dept.

(memorandum opinion)

In landowner's action against neighbor for property damages suffered as a result of negligence, trespass, and nuisance, neighbor appealed from the Supreme Court's grant of summary judgment to plaintiff-landowner. The Appellate Division modified to deny the summary judgment motion, holding that issues of fact were presented about neighbor's responsibility for water conditions on landowner's property.

Plaintiff landowner alleged water damage to its premises resulting from construction on neighbor's property. Based on testimony by plaintiff-landowner's expert, the Supreme Court awarded summary judgment to landowner. Neighbor appealed.

In modifying to reverse the summary judgment award, the Appellate Division noted that a landowner is not liable for damages to abutting property caused by the flow of surface water due to improvements on the land, so long as the improvements were made in good faith and for a rational purpose, and so long as the water is not drained onto the neighboring land by artificial means, such as by pipes or ditches. In this case, defendant-neighbor's expert submitted an affidavit asserting that he found no conditions, other than normal water penetration, that would cause damage to plaintiff landowner's property, and that the water penetration on plaintiff's land resulted from ground water in the rear of plaintiff's own parcel. His affidavit raised questions of fact challenging assertions by plaintiff-landowner's expert, requiring denial of the summary judgment motion.

City Has No Obligation to Maintain Easement over Parkway

Cypress Hills Cemetery v. City of New York

NYLJ 1/2/07, p. 34, col. 2
AppDiv, Second Dept

(memorandum opinion)

In an action by landowner for a declaration that it enjoyed an easement over the Jackie Robinson Parkway, and that the city was obligated to maintain that easement, landowner appealed from a Supreme Court judgment declaring that it had no easement. The Appellate Division modified, granting landowner summary judgment on its claim to an easement, but concluding that the city had no obligation to repair or replace the bridges over the parkway.

When the city condemned the land on which the parkway is built, the enabling statute authorized the cemeteries affected by the condemnation to build bridges over the parkway. That legislation also put the burden of building those bridges on the cemeteries, and imposed on the city no obligation to maintain the bridges. Nevertheless, the city built the initial bridges. In this action, landowner sought a declaration that it held easements over the parkway, and that the city was obligated to repair or replace the bridges. Supreme Court granted summary judgment to the city.

In modifying, the Appellate Division concluded first that landowner had established an easement implied by existing use at the time the parkway severed the cemetery land. But the court then noted that, absent an agreement to the contrary, the dominant owner bears the burden of maintaining an easement. In this case, the cemetery owner produced no evidence of such an agreement, and the municipal defendants established that there was no such agreement. As a result, the court declared that the city had no obligation to repair or rebuild the bridges.

 

Deed Estops Former Owner from Claiming Title

DeRoche v. John

NYLJ 1/17/07, p. 24, col. 1

Supreme Ct., Nassau Cty

(O'Connell, J.)

Title holder of the subject premises brought this ejectment action against former owner. The court, after a non-jury trial, determined that the deed from former owner to current title holder estopped the former owner from claiming title to the premises.

Former owner took title to the premises in 1995. Current title holder, DeRoche, had been living in the premises by January 2000, but was not paying rent. He apparently provided services, including digging out a cellar, for former owner and her husband, and made occasional mortgage payments. Former owner's husband suffered a stroke before 2004, disabling him from working and leading former owner to fall behind in mortgage payments. Former owner approached occupant with a plan by which title would be transferred to DeRoche, allegedly for a year, upon which title would be retransferred to former owner. Former owner was to pay $1800 per month plus utilities. In fact, however, DeRoche obtained a mortgage, and paid former owner $18,162.36 over and above the proceeds of the mortgage. That amount was used to satisfy former owner's mortgage. Former owner then made monthly payments to occupant for several months, but then stopped making them. DeRoche has continued to pay the mortgage. When DeRoche brought this action to eject former owner from the premises, former owner asserted that it would be inequitable for her to be excluded from the premises without compensation.

In concluding that current title holder is entitled to possession, the court concluded that the deed given by former owner to current title holder estopped former owner from asserting that she retained a reversionary interest in the property. The court also awarded current title holder rent at the rate of $1800 per month for each month during which former owner has been in occupancy without paying rent.