Real Property Law

AppDiv, First Dept

(memorandum opinion)

In an action by adverse possessors for a declaration that they own the disputed parcel, adverse possessors appealed from the Supreme Court's grant of summary judgment to record owners. The Appellate Division modified to reinstate the complaint and deny summary judgment to both parties, holding that questions of fact remained critical to resolution of the adverse possession claim.

Adverse possessors own two adjacent parcels in downtown Manhattan. Record owners own an 'L-shaped' parcel that abuts the parcels owned by the adverse possessors on one side, and at the back of adverse possessors' parcel. The disputed parcel is a strip, 23 feet wide and 8 feet deep, located behind the parcel owned by adverse possessors. Since at least 1983, the predecessor of the current adverse possessors occupied the disputed parcel and enclosed it by a fence, using it for placement of lawn furniture, a barbecue, firewood, and plants. For at least the last 10 years, the only access to the parcel has been through the residence on adverse possessors' property. A 1985 survey showed the disputed parcel as enclosed within the property now owned by adverse possessors, and brokers marketed the property as including the disputed parcel. Predecessors of the current adverse possessors submitted affidavits supporting these facts, and asserting that record owners had never challenged placement of the fence or use of the disputed parcel. On this record, Supreme Court awarded summary judgment to record owners, emphasizing that predecessors had never asserted that their occupation was under a claim of right, that they had paid taxes, or that they had erected the fence. Hence, the court concluded that current adverse possessor could not tack their possession to her own title, which dated from 1997 as to part of their land and 2000 as to the rest. Adverse possessors appealed.

In modifying, the Appellate Division held that Supreme Court had erroneously drawn adverse inferences from the failure of the affidavits submitted by prior to make assertions about payment of taxes and about use of the property. The Appellate Division held that questions of fact about these issues, and about adverse possessors' knowledge of the ownership of the disputed parcel, precluded award of summary judgment to any party. But the Appellate Division emphasized that adverse possessors had to establish that their possession began with an initial claim of right. Occupancy for an extended period of time, coupled with conduct consistent with ownership, is not, in the court's view, sufficient to establish title by adverse possession.

COMMENT

To sustain a claim of adverse possession in New York, the adverse possessor, in addition to meeting the applicable statutory requirements, must establish that, among other things, initial possession of the property was 'hostile and under a claim of right.' Belotti v. Bickhardt, 228 N.Y. 296. Courts will not find that possession was hostile and under a claim of right where there is evidence that the adverse possessor took possession of the property with the permission of the rightful owner. Thus, in Koudellou v. Sakalis, 29 A.D.3d 640, the court held that true owner was entitled to summary judgment when the adverse possessors admitted that they had erected a fence enclosing the disputed parcel with the knowledge and assistance of the true owner. From this admission, the court inferred that the fence was erected with the permission of the true owner, thereby rebutting the inference of hostile possession.

However, an adverse possessor's claim of right of ownership will not be defeated by mere knowledge that another holds legal title. Last year, in Walling v. Przybylo, 7 N.Y.3d 228, the Court of Appeals affirmed the decision of the Appellate Division awarding the Wallings title by adverse possession, despite evidence that they may have had actual knowledge of the true owners' interest prior to making improvements on the land. In so holding, the Court of Appeals reiterated the well established principle that an adverse possessor's actual knowledge of the true owner is not fatal to an adverse possession claim, and reasoned that conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessor. The court distinguished Van Valkenburgh v. Lutz, 304 N.Y. 95, disapproving dictum in that case suggesting that awareness of the rightful owner's title would be fatal to an adverse possession claim.

At least one case decided since Walling reaffirms the proposition that an adverse possessor's claim will not be defeated because of his knowledge that the disputed area was actually owned by another. In Hall v. Sinclaire, 35 A.D. 3d 660, the Appellate Division reversed the decision of the Supreme Court, and granted title by adverse possession to Sinclair, despite his actual knowledge of the true owner at the time of possession. There, Sinclair took possession of and erected a fence around a portion of a driveway that he knew encroached upon another's property when he purchased it. In allowing Sinclair to tack his adverse possession to that of his predecessors to obtain title by adverse possession, the court cited Walling for the proposition that knowledge that a disputed parcel is owned by another does not defeat an adverse possessor's claim of right. Therefore, while, the Appellate Division's reversal of Supreme Court's award of summary judgment to the true owner in Keena is consistent with the holdings of Walling and Hall, the Appellate Division's denial of adverse possessor's summary judgment motion, and the court's statement that 'the questions of plaintiff's knowledge of ownership of the disputed parcels, are questions of fact which should be determined at trial' appear to be inconsistent with the established principle that knowledge of the true owner will not defeat a claim of adverse possession.

Easement Use Does Not Result In Extinguishment

McIntrye v. Estate of Keller

NYLJ 2/15/07, p. 19, col. 1

Supreme Ct., Bronx Cty

(Hunter, J.)

In an action to extinguish an easement, dominant owner moved for summary judgment. The court granted the motion, holding that misuse of the easement would not constitute grounds for extinguishment. As early as 1925, the owners of two adjoining parcels in the Bronx entered into a common driveway easement. The easement specified that the driveway was 'to be used solely as a means of ingress and egress and only and solely for pleasure automobiles and is not to be used for the storage thereon of said automobiles nor encumbered in an way.' Much later, servient owner complained that dominant owner was misusing the easement. That dispute resulted in a stipulation dated Dec. 21, 1998, by the terms of which the then-owner agreed to limit use of the easement. After the death of that owner, her son inherited the property. Servient owner contends that dominant owner has permitted commercial vehicles to use the driveway and that dominant owner, by permitting 'anyone and everyone' to use the driveway, has deprived servient owner of quiet use and enjoyment of their parcel. As a result, dominant owner sought money damages, together with extinguishment of the easement.

In granting summary judgment to dominant owner, the court first held that there was no indication that the stipulation entered into by prior owner was binding on her successors. The court then held that even if the easement had been misused, servient owner had not established any basis for extinguishment of the easement.

COMMENT

Misuse or excessive use of an easement cannot extinguish that easement. In McCullough v. Broad Exch. Co., 101 A.D. 566, affd. 184 N.Y. 592, the dominant owner bought several adjacent lots including one with an easement of egress and ingress over an alleyway shared by some neighbors. Dominant owner consolidated the several lots and built one twenty-story office building, using the alley to carry out refuse and to bring in coal to heat the building. Although the court held that use of the easement for the benefit of parts of the building other than the dominant estate constituted misuse, the court held that servient owner could only obtain an injunction against misuse, but not a judgment extinguishing the easement. In 836 Franklin Ave. Catering Corp. v. Haber, 164 Misc. 227, Affd., 251 App. Div. 728, the court held that a defense of misuse was unavailable to a sevient owner who had closed off an easement granted to dominant owner to permit egress in case of fire. Even though dominant landowner did misuse the easement by using it for business operation, the court held that misuse did not extinguish the easement, and did not, therefore, justify servient owner's action in closing off the easement.

Injunctive relief is the ordinary remedy against a dominant owner who misuses an easement. In addition to McCullough, an injunction against misuse was granted in Falco v. Minzner, 28 Misc. 2d 300, where defendant servient owners counterclaimed against dominant owners, alleging that they had misused the common driveway easement by storing articles on it rather than using it for egress and ingress only.

When a court grants an injunction, non-compliance will constitute a contempt of court. Root v. Conkling, 108 Misc. 234. In Root, plaintiff and defendant shared a common sewage system to which both had an easement. Defendant plugged up the pipes, restricting access to the plaintiff. The court issued an injunction to the defendant to unplug and reconnect the pipes, but defendant waited more than two days to comply, and in the meantime challenged the court's judgment. A fine was imposed on the defendant for this delay.

Questions of Fact Preclude Summary Judgment

Keena v. Hudmor Corp.

NYLJ 2/7/07, p. 27, col. 1

AppDiv, First Dept

(memorandum opinion)

In an action by adverse possessors for a declaration that they own the disputed parcel, adverse possessors appealed from the Supreme Court's grant of summary judgment to record owners. The Appellate Division modified to reinstate the complaint and deny summary judgment to both parties, holding that questions of fact remained critical to resolution of the adverse possession claim.

Adverse possessors own two adjacent parcels in downtown Manhattan. Record owners own an 'L-shaped' parcel that abuts the parcels owned by the adverse possessors on one side, and at the back of adverse possessors' parcel. The disputed parcel is a strip, 23 feet wide and 8 feet deep, located behind the parcel owned by adverse possessors. Since at least 1983, the predecessor of the current adverse possessors occupied the disputed parcel and enclosed it by a fence, using it for placement of lawn furniture, a barbecue, firewood, and plants. For at least the last 10 years, the only access to the parcel has been through the residence on adverse possessors' property. A 1985 survey showed the disputed parcel as enclosed within the property now owned by adverse possessors, and brokers marketed the property as including the disputed parcel. Predecessors of the current adverse possessors submitted affidavits supporting these facts, and asserting that record owners had never challenged placement of the fence or use of the disputed parcel. On this record, Supreme Court awarded summary judgment to record owners, emphasizing that predecessors had never asserted that their occupation was under a claim of right, that they had paid taxes, or that they had erected the fence. Hence, the court concluded that current adverse possessor could not tack their possession to her own title, which dated from 1997 as to part of their land and 2000 as to the rest. Adverse possessors appealed.

In modifying, the Appellate Division held that Supreme Court had erroneously drawn adverse inferences from the failure of the affidavits submitted by prior to make assertions about payment of taxes and about use of the property. The Appellate Division held that questions of fact about these issues, and about adverse possessors' knowledge of the ownership of the disputed parcel, precluded award of summary judgment to any party. But the Appellate Division emphasized that adverse possessors had to establish that their possession began with an initial claim of right. Occupancy for an extended period of time, coupled with conduct consistent with ownership, is not, in the court's view, sufficient to establish title by adverse possession.

COMMENT

To sustain a claim of adverse possession in New York, the adverse possessor, in addition to meeting the applicable statutory requirements, must establish that, among other things, initial possession of the property was 'hostile and under a claim of right.' Belotti v. Bickhardt , 228 N.Y. 296. Courts will not find that possession was hostile and under a claim of right where there is evidence that the adverse possessor took possession of the property with the permission of the rightful owner. Thus, in Koudellou v. Sakalis , 29 A.D.3d 640, the court held that true owner was entitled to summary judgment when the adverse possessors admitted that they had erected a fence enclosing the disputed parcel with the knowledge and assistance of the true owner. From this admission, the court inferred that the fence was erected with the permission of the true owner, thereby rebutting the inference of hostile possession.

However, an adverse possessor's claim of right of ownership will not be defeated by mere knowledge that another holds legal title. Last year, in Walling v. Przybylo, 7 N.Y.3d 228, the Court of Appeals affirmed the decision of the Appellate Division awarding the Wallings title by adverse possession, despite evidence that they may have had actual knowledge of the true owners' interest prior to making improvements on the land. In so holding, the Court of Appeals reiterated the well established principle that an adverse possessor's actual knowledge of the true owner is not fatal to an adverse possession claim, and reasoned that conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessor. The court distinguished Van Valkenburgh v. Lutz , 304 N.Y. 95, disapproving dictum in that case suggesting that awareness of the rightful owner's title would be fatal to an adverse possession claim.

At least one case decided since Walling reaffirms the proposition that an adverse possessor's claim will not be defeated because of his knowledge that the disputed area was actually owned by another. In Hall v. Sinclaire , 35 A.D. 3d 660, the Appellate Division reversed the decision of the Supreme Court, and granted title by adverse possession to Sinclair, despite his actual knowledge of the true owner at the time of possession. There, Sinclair took possession of and erected a fence around a portion of a driveway that he knew encroached upon another's property when he purchased it. In allowing Sinclair to tack his adverse possession to that of his predecessors to obtain title by adverse possession, the court cited Walling for the proposition that knowledge that a disputed parcel is owned by another does not defeat an adverse possessor's claim of right. Therefore, while, the Appellate Division's reversal of Supreme Court's award of summary judgment to the true owner in Keena is consistent with the holdings of Walling and Hall, the Appellate Division's denial of adverse possessor's summary judgment motion, and the court's statement that 'the questions of plaintiff's knowledge of ownership of the disputed parcels, are questions of fact which should be determined at trial' appear to be inconsistent with the established principle that knowledge of the true owner will not defeat a claim of adverse possession.

Easement Use Does Not Result In Extinguishment

McIntrye v. Estate of Keller

NYLJ 2/15/07, p. 19, col. 1

Supreme Ct., Bronx Cty

(Hunter, J.)

In an action to extinguish an easement, dominant owner moved for summary judgment. The court granted the motion, holding that misuse of the easement would not constitute grounds for extinguishment. As early as 1925, the owners of two adjoining parcels in the Bronx entered into a common driveway easement. The easement specified that the driveway was 'to be used solely as a means of ingress and egress and only and solely for pleasure automobiles and is not to be used for the storage thereon of said automobiles nor encumbered in an way.' Much later, servient owner complained that dominant owner was misusing the easement. That dispute resulted in a stipulation dated Dec. 21, 1998, by the terms of which the then-owner agreed to limit use of the easement. After the death of that owner, her son inherited the property. Servient owner contends that dominant owner has permitted commercial vehicles to use the driveway and that dominant owner, by permitting 'anyone and everyone' to use the driveway, has deprived servient owner of quiet use and enjoyment of their parcel. As a result, dominant owner sought money damages, together with extinguishment of the easement.

In granting summary judgment to dominant owner, the court first held that there was no indication that the stipulation entered into by prior owner was binding on her successors. The court then held that even if the easement had been misused, servient owner had not established any basis for extinguishment of the easement.

COMMENT

Misuse or excessive use of an easement cannot extinguish that easement. In McCullough v. Broad Exch. Co., 101 A.D. 566, affd. 184 N.Y. 592, the dominant owner bought several adjacent lots including one with an easement of egress and ingress over an alleyway shared by some neighbors. Dominant owner consolidated the several lots and built one twenty-story office building, using the alley to carry out refuse and to bring in coal to heat the building. Although the court held that use of the easement for the benefit of parts of the building other than the dominant estate constituted misuse, the court held that servient owner could only obtain an injunction against misuse, but not a judgment extinguishing the easement. In 836 Franklin Ave. Catering Corp. v. Haber, 164 Misc. 227, Affd., 251 App. Div. 728, the court held that a defense of misuse was unavailable to a sevient owner who had closed off an easement granted to dominant owner to permit egress in case of fire. Even though dominant landowner did misuse the easement by using it for business operation, the court held that misuse did not extinguish the easement, and did not, therefore, justify servient owner's action in closing off the easement.

Injunctive relief is the ordinary remedy against a dominant owner who misuses an easement. In addition to McCullough, an injunction against misuse was granted in Falco v. Minzner, 28 Misc. 2d 300, where defendant servient owners counterclaimed against dominant owners, alleging that they had misused the common driveway easement by storing articles on it rather than using it for egress and ingress only.

When a court grants an injunction, non-compliance will constitute a contempt of court. Root v. Conkling, 108 Misc. 234. In Root, plaintiff and defendant shared a common sewage system to which both had an easement. Defendant plugged up the pipes, restricting access to the plaintiff. The court issued an injunction to the defendant to unplug and reconnect the pipes, but defendant waited more than two days to comply, and in the meantime challenged the court's judgment. A fine was imposed on the defendant for this delay.