Real Property Law

Improvements Inadequate yo Support Adverse Possession Claim

RSVL Inc. v. Portillo

NYLJ 10/10/07, p. 27, col. 3

Supreme Ct., Nassau Cty

(Palmieri, J.)

In an action by record owner to quiet title, record owner sought summary judgment, and sought dismissal of neighbors' adverse possession claims. The court awarded summary judgment to record owner, holding that improvements made by adverse possessors were not adequate to support their claims, and that adverse possessors had not demonstrated that the possession of their predecessors was sufficiently hostile to permit tacking.

When record owner bought its commercial parcel in 1996, a fence ran along the back of the parcel, parallel to the parcel's easterly boundary, but three feet away from that boundary. Neighbors, a series of residential homeowners whose parcels abut the rear of record owners' parcel, contended that they had acquired title to that three-foot strip by adverse possession. The neighbors established that the fence had been in existence since at least 1967. Some of the neighbors relied on fences along the sides of their parcels attached to the fence on record owner's parcel to establish a 'substantial enclosure' of the disputed strip; other neighbors relied on sheds built or trees planted on the three-foot strip to establish improvement of the strip. Neighbors who had not themselves owned their parcels for at least ten years sought to tack their possession to that of their predecessors.

In awarding summary judgment to record owner, the court concluded that the neighbors could not rely on the record owner's fence to establish a substantial enclosure, and concluded that neither the construction of sheds 'partly' on the strip nor the planting of trees was sufficient to constitute possession within the meaning of New York's adverse possession statute. Finally, the court noted that for those neighbors who had not owned their parcels for at least ten years, the tacking claims were inadequate because neighbors had not demonstrated that the possession of their predecessors was sufficiently hostile to establish adverse possession.

COMMENT

The Court of Appeals has held that an adverse possessor's actual knowledge of the true owner's superior claim does not prevent the possessor from satisfying the doctrinal requirement that his claim be 'hostile and under claim of right.' In Walling v. Przybylo, 7 N.Y.3d 228, the Court of Appeals emphasized that the possessor's conduct, not the possessor's knowledge, was essential in establishing that the claim was 'hostile and under claim of right,' and held that the adverse possessors were entitled to summary judgment even if they occupied the disputed land with knowledge that it belonged to the true owners. In Walling, the adverse possessors deposited fill and topsoil, dug a trench, installed drainage pipes and an underground dog house, a bird house, and continuously cared for the disputed parcel until the owner surveyed their boundaries, at which time they discovered the adverse possessors' encroachment. The court reasoned that modifications on the property placed the owners on notice of an adverse claim, and that the owners' failure to bring an ejectment action constituted acquiescence.

Long before Walling, New York courts established that a presumption of hostile use arises where an adverse possessor proves actual, open, exclusive, notorious and uninterrupted use for the requisite time period. For instance, in Brocco v. Mileo, 170 A.D.2d 732, the court found that the adverse possessor had sufficiently established that their predecessor's use of the access way satisfied all of the other adverse possession elements, thus shifting the burden of proving non-hostile use to the owners, which the court held they failed to sustain.

Although the RSVL court's analysis is inconsistent with both Walling's substantive precedent for evaluating hostile use and Brocco's well-established burden of proof presumption, the court could easily have justified the same result in light of its apparent conclusion that adverse possessors had failed to satisfy the cultivation or improvement requirements of RPAPL ' 522.

 

Title Insurer Obligated to Pay For Appeal Despite Willingness To Compensate Owner for Loss

Schneider v. Commonwealth Land Title Ins. Co.

NYLJ 9/27/07, p. 27, col. 1

Supreme Ct., Kings Cty

(Saitta, J.)

In an action by landowners against their title insurer to recover losses and costs associated with their appeal in a case based on their neighbors' adverse possession claim, title insurer sought summary judgment, and landowners cross-moved to dismiss a number of title insurer's defenses. The court denied title insurer's summary judgment motion, holding that the insurer's obligation to defend included an obligation to pay for the costs of a reasonable appeal.

Landowners purchased title insurance on their premises in 1989. In 1991, landowners were sued by neighbors who claimed title by adverse possession to portions of landowners' parcel. The neighbors contended that their possession began in 1962. Title insurers defended landowners in the action, and in 1998, the trial court determined that the disputed land consisted of two separate parcels ' one at the front of landowner's lot, and one in the rear. The court awarded neighbors the front parcel and awarded landowners the rear parcel. When landowners sought to appeal, the title insurers informed landowners that they had no obligation to appeal, but that they would pay landowners the difference between the value of the premises with and without the front parcel. Title insurer hired an independent appraiser, who determined that value to be $2,100. Landowners nevertheless hired outside counsel, and appealed the trial court's determination. Neighbors cross-appealed. The Appellate Division held for neighbors on both the appeal and the cross-appeal, leaving landowners without either the front parcel or the rear parcel. Landowners then brought this action against title insurers, seeking the value of both parcels, together with legal fees and costs, and punitive damages. Title insurers sought summary judgment.

In denying summary judgment to title insurers, the court acknowledged that a title insurance policy is a contract by which a title insurer agrees to indemnify the insured for loss occasioned by defect in title. The court then held that although policies are generally written to give the insurer the option to indemnify the insured rather than defending against the adverse claimant, a New York title insurer has an obligation to prosecute an appeal when there is a reasonable basis for doing so. In this case, the court concluded that there was a reasonable basis for appeal, and the insurer was obligated to prosecute the appeal. The court went on to hold that the insurer could not rely on the risk of losing the rear parcel as a basis for failing to prosecute the appeal, concluding that landowners were not obligated to accept half a loaf.

 

Building Owner Responsible For Cost of Maintaining Roof Structure Above FDR Drive

Cannon Point North, Inc. v. City of New York

NYLJ 10/15/07, p. 18, col. 1

AppDiv, First Dept.

(Opinion by Buckley, J.)

In an action by the owner of a building on Sutton Place South for a declaration that the city and state are responsible for repairing and maintaining the roof structure over the FDR drive, owner appealed from Supreme Court's determination that owner was responsible for repair and maintenance. The Appellate Division modified, holding that the owner of the building owned and was responsible for maintenance of the columns and beams supporting the roof structure, but that owner had raised questions of fact bout whether the city's actions had contributed to their deterioration.

When the city contemplated extending the FDR Drive southward in the late 1930s, the city sought to condemn a permanent easement for street purposes across the disputed land. Supreme Court approved the condemnation, and the award to the then owners of the disputed land included an award of compensation for the additional cost of building foundations as a result of the city's easement. In 1957, before construction of the building atop the Drive, owner's lessee agreed to install columns and beams in a way that would not endanger the Drive's stability, and agreed to submit to the Borough President plans for 'maintenance operations that may interfere with vehicular traffic.' In 2002 and 2003, inspections conducted at the city's direction revealed cracks in the concrete above the Drive. The city directed landowner to correct the condition, but landowner refused, contending that maintenance was the city's responsibility. The city spent nearly $300,000 on the repairs. Owner then brought this declaratory judgment action. Supreme Court granted the city's motion for summary judgment on the city's counterclaims establishing that landowner was the owner of the understructure of its premises, and hence responsible for maintenance and repair of that understructure. Owner appealed.

In modifying the Appellate Division first rejected owner's contention that the relevant document created ambiguity about owner's responsibility for maintenance of the columns and foundations. The court concluded that owner had build the foundation and columns, and that the owner was not entitled to force upon the city responsibility for maintaining those structures. At the same time, however, the court noted testimony by owner's structural engineer that the deterioration of concrete and steel was due primarily to long-term exposure to salt and other road de-icing substances. This testimony raised questions of fact about the city's responsibility for the necessary repairs to the foundation and columns. Hence, held that summary judgment on that question should have been denied.

Improvements Inadequate yo Support Adverse Possession Claim

RSVL Inc. v. Portillo

NYLJ 10/10/07, p. 27, col. 3

Supreme Ct., Nassau Cty

(Palmieri, J.)

In an action by record owner to quiet title, record owner sought summary judgment, and sought dismissal of neighbors' adverse possession claims. The court awarded summary judgment to record owner, holding that improvements made by adverse possessors were not adequate to support their claims, and that adverse possessors had not demonstrated that the possession of their predecessors was sufficiently hostile to permit tacking.

When record owner bought its commercial parcel in 1996, a fence ran along the back of the parcel, parallel to the parcel's easterly boundary, but three feet away from that boundary. Neighbors, a series of residential homeowners whose parcels abut the rear of record owners' parcel, contended that they had acquired title to that three-foot strip by adverse possession. The neighbors established that the fence had been in existence since at least 1967. Some of the neighbors relied on fences along the sides of their parcels attached to the fence on record owner's parcel to establish a 'substantial enclosure' of the disputed strip; other neighbors relied on sheds built or trees planted on the three-foot strip to establish improvement of the strip. Neighbors who had not themselves owned their parcels for at least ten years sought to tack their possession to that of their predecessors.

In awarding summary judgment to record owner, the court concluded that the neighbors could not rely on the record owner's fence to establish a substantial enclosure, and concluded that neither the construction of sheds 'partly' on the strip nor the planting of trees was sufficient to constitute possession within the meaning of New York's adverse possession statute. Finally, the court noted that for those neighbors who had not owned their parcels for at least ten years, the tacking claims were inadequate because neighbors had not demonstrated that the possession of their predecessors was sufficiently hostile to establish adverse possession.

COMMENT

The Court of Appeals has held that an adverse possessor's actual knowledge of the true owner's superior claim does not prevent the possessor from satisfying the doctrinal requirement that his claim be 'hostile and under claim of right.' In Walling v. Przybylo, 7 N.Y.3d 228, the Court of Appeals emphasized that the possessor's conduct, not the possessor's knowledge, was essential in establishing that the claim was 'hostile and under claim of right,' and held that the adverse possessors were entitled to summary judgment even if they occupied the disputed land with knowledge that it belonged to the true owners. In Walling, the adverse possessors deposited fill and topsoil, dug a trench, installed drainage pipes and an underground dog house, a bird house, and continuously cared for the disputed parcel until the owner surveyed their boundaries, at which time they discovered the adverse possessors' encroachment. The court reasoned that modifications on the property placed the owners on notice of an adverse claim, and that the owners' failure to bring an ejectment action constituted acquiescence.

Long before Walling, New York courts established that a presumption of hostile use arises where an adverse possessor proves actual, open, exclusive, notorious and uninterrupted use for the requisite time period. For instance, in Brocco v. Mileo, 170 A.D.2d 732, the court found that the adverse possessor had sufficiently established that their predecessor's use of the access way satisfied all of the other adverse possession elements, thus shifting the burden of proving non-hostile use to the owners, which the court held they failed to sustain.

Although the RSVL court's analysis is inconsistent with both Walling's substantive precedent for evaluating hostile use and Brocco's well-established burden of proof presumption, the court could easily have justified the same result in light of its apparent conclusion that adverse possessors had failed to satisfy the cultivation or improvement requirements of RPAPL ' 522.

 

Title Insurer Obligated to Pay For Appeal Despite Willingness To Compensate Owner for Loss

Schneider v. Commonwealth Land Title Ins. Co.

NYLJ 9/27/07, p. 27, col. 1

Supreme Ct., Kings Cty

(Saitta, J.)

In an action by landowners against their title insurer to recover losses and costs associated with their appeal in a case based on their neighbors' adverse possession claim, title insurer sought summary judgment, and landowners cross-moved to dismiss a number of title insurer's defenses. The court denied title insurer's summary judgment motion, holding that the insurer's obligation to defend included an obligation to pay for the costs of a reasonable appeal.

Landowners purchased title insurance on their premises in 1989. In 1991, landowners were sued by neighbors who claimed title by adverse possession to portions of landowners' parcel. The neighbors contended that their possession began in 1962. Title insurers defended landowners in the action, and in 1998, the trial court determined that the disputed land consisted of two separate parcels ' one at the front of landowner's lot, and one in the rear. The court awarded neighbors the front parcel and awarded landowners the rear parcel. When landowners sought to appeal, the title insurers informed landowners that they had no obligation to appeal, but that they would pay landowners the difference between the value of the premises with and without the front parcel. Title insurer hired an independent appraiser, who determined that value to be $2,100. Landowners nevertheless hired outside counsel, and appealed the trial court's determination. Neighbors cross-appealed. The Appellate Division held for neighbors on both the appeal and the cross-appeal, leaving landowners without either the front parcel or the rear parcel. Landowners then brought this action against title insurers, seeking the value of both parcels, together with legal fees and costs, and punitive damages. Title insurers sought summary judgment.

In denying summary judgment to title insurers, the court acknowledged that a title insurance policy is a contract by which a title insurer agrees to indemnify the insured for loss occasioned by defect in title. The court then held that although policies are generally written to give the insurer the option to indemnify the insured rather than defending against the adverse claimant, a New York title insurer has an obligation to prosecute an appeal when there is a reasonable basis for doing so. In this case, the court concluded that there was a reasonable basis for appeal, and the insurer was obligated to prosecute the appeal. The court went on to hold that the insurer could not rely on the risk of losing the rear parcel as a basis for failing to prosecute the appeal, concluding that landowners were not obligated to accept half a loaf.

 

Building Owner Responsible For Cost of Maintaining Roof Structure Above FDR Drive

Cannon Point North, Inc. v. City of New York

NYLJ 10/15/07, p. 18, col. 1

AppDiv, First Dept.

(Opinion by Buckley, J.)

In an action by the owner of a building on Sutton Place South for a declaration that the city and state are responsible for repairing and maintaining the roof structure over the FDR drive, owner appealed from Supreme Court's determination that owner was responsible for repair and maintenance. The Appellate Division modified, holding that the owner of the building owned and was responsible for maintenance of the columns and beams supporting the roof structure, but that owner had raised questions of fact bout whether the city's actions had contributed to their deterioration.

When the city contemplated extending the FDR Drive southward in the late 1930s, the city sought to condemn a permanent easement for street purposes across the disputed land. Supreme Court approved the condemnation, and the award to the then owners of the disputed land included an award of compensation for the additional cost of building foundations as a result of the city's easement. In 1957, before construction of the building atop the Drive, owner's lessee agreed to install columns and beams in a way that would not endanger the Drive's stability, and agreed to submit to the Borough President plans for 'maintenance operations that may interfere with vehicular traffic.' In 2002 and 2003, inspections conducted at the city's direction revealed cracks in the concrete above the Drive. The city directed landowner to correct the condition, but landowner refused, contending that maintenance was the city's responsibility. The city spent nearly $300,000 on the repairs. Owner then brought this declaratory judgment action. Supreme Court granted the city's motion for summary judgment on the city's counterclaims establishing that landowner was the owner of the understructure of its premises, and hence responsible for maintenance and repair of that understructure. Owner appealed.

In modifying the Appellate Division first rejected owner's contention that the relevant document created ambiguity about owner's responsibility for maintenance of the columns and foundations. The court concluded that owner had build the foundation and columns, and that the owner was not entitled to force upon the city responsibility for maintaining those structures. At the same time, however, the court noted testimony by owner's structural engineer that the deterioration of concrete and steel was due primarily to long-term exposure to salt and other road de-icing substances. This testimony raised questions of fact about the city's responsibility for the necessary repairs to the foundation and columns. Hence, held that summary judgment on that question should have been denied.