Real Property Law

No Pre-Emption of Local Mobile Home Park Regulation

Willow Woods Manufactured Homeowners Association, Inc. v. R&R Mobile Home Park, Inc.

NYLJ 3/1/11, p. 35, col. 1

AppDiv Second Dept.

(memorandum opinion)

In an action by homeowners association for a judgment declaring a contract of sale invalid, contract vendee appealed from Supreme Court's order denying its motion to dismiss the complaint. The Appellate Division affirmed, holding that Real Property Law ' 233 did not pre-empt Suffolk County regulation giving mobile home park tenants a right of first refusal over the land on which their homes are situated.

R&R owns and operates a mobile home park. In 2008, R&R contracted to sell the park to a developer, subject to the developer obtaining approval to build a shopping center on the site. Suffolk County Code ' 356-6 gives mobile home park tenants a right of first refusal with respect to the park land. Accordingly, R&R sent the tenants a copy of the sale contract. Tenants then incorporated their homeowners association, and the association exercised the right of first refusal, sending a $50,000 down payment check to R&R. The latter returned the check without explanation, and the homeowners association brought this action for a judgment invalidating the contract of sale to the developer, and for an injunction requiring R&R to accept the association's offer to purchase the property. The developer moved to dismiss, contending that Real Property Law ' 23 pre-empted the Suffolk County Code. Supreme Court denied the motion, and the developer appealed. The association cross-appealed from Supreme Court's denial of preliminary injunctive relief.

In affirming, the Appellate Division held that Real Property Law ' 233 pre-empted only local regulation of the landlord-tenant relationship within mobile home parks, but did not pre-empt local regulation of the sale of mobile home park land. The court could not find in ' 233 any express or implied intent to pre-empt the field of mobile home regulation. As a result, the association was entitled to enforce the right of first refusal embodied in the Suffolk County Code. The court also affirmed Supreme Court's denial of preliminary injunctive relief, noting that the notice of pendency filed by the association would provide adequate protection against a closing of title pending final resolution of the action.

COMMENT

Even if local regulation does not directly conflict with state law, and even if the state statute does not expressly pre-empt local law, state legislation pre-empts local regulation when the state legislature impliedly evidences its desire to occupy the entire field of law by enacting a comprehensive regulatory scheme. Thus, in Consolidated Edison Co. of New York Inc. v. Town of Red Hook, 60 N.Y.2d 99,, the Court of Appeals held that Article VIII of the Public Service Law (“Siting of Major Steam Electric Generating Facilities”) represented a comprehensive regulatory scheme which left no room for local regulation. As a result, state law pre-empted a local ordinance which required a certification procedure for all new steam electric generating facilities.

Real Property Law 233 protects mobile home tenants against unwarranted evictions, fees, assessments and restrictions on subleasing, and simultaneously provides park owners a list of occasions that justify eviction. Because of the comprehensive nature of ' 233, the court in Ba Mar v. County of Rockland held that ' 233 preempted local laws establishing the circumstances under which mobile home owner could evict a tenant. Although the court in Willow Woods could have concluded that ' 233 impliedly pre-empted local regulation of first refusal rights, the court instead distinguished Ba Mar by concluding that ' 233 addresses only the rights of landlord and tenant in their capacity as landlord and tenant, while Suffolk County Code
' 356-6, at issue in Willow Woods, addresses the parties in their capacity as property owners.

Real Property Law ' 233-a provides comprehensive instructions on what must occur if a mobile home park owner receives a bona fide offer to buy the park. If a purchaser makes a bona fide offer and indicates an intent to use the land for a different purpose, the statute gives park tenants a right of first refusal. This is precisely what Suffolk County Code ' 356-6, at issue in Willow Woods, attempted to do. It was enacted too late to have bearing on Willow Woods, but the court acknowledges that the sale of mobile home parkland may be pre-empted by ' 233-a. Of course, ' 233-a would not change the result in Willow Woods because the new statute codifies the same right of first refusal embodied in
' 233-a of the Suffolk County Code.

Leasehold Interest Does Not Pass By Operation of Law to Decedent's Heirs

Booth v. Ameriquest Mortgage Co.

NYLJ 2/18/11

Supreme Ct., Suffolk Cty.

(Pines, J.)

In an action to discharge and cancel a leasehold mortgage, the parties consented to a decision based on stipulated facts. Based on those facts, the court canceled the mortgage because the mortgagor had not acquired the leasehold by operation of law at the moment of his father's death.

Decedent father held a leasehold interest on property located in Gilgo Beach. He died intestate in 2000, leaving three adult children, Richard, Gail, and mortgagor Donald. Gail died intestate three weeks later, survived by her two brothers. In 2003, Donald and his wife entered into the subject mortgage agreement with Ameriquest. Richard subsequently brought an action against Donald and his wife to set aside an assignment of a 1998 lease to the property from the father to Donald, and for an accounting of assets Donald and his wife had allegedly taken from the father before and after the father's death. While that action was pending, Donald killed his wife and himself. The Surrogate's Court later issued an order invalidating the 1998 lease and a 2000 assignment of the lease from Donald to himself and his wife. That court also determined that Richard was the sole beneficiary of his father's estate. Based on that judgment, Richard brought this action contending that the mortgage to Ameriquest was void because Donald and his wife had no interest in the lease at the time of the mortgage.

In holding that Ameriquest had never acquired a valid mortgage, the court rejected Ameriquest's argument that at the father's death, each of the three children automatically and immediately acquired a one-third interest in the leasehold as a matter of law. Ameriquest similarly argued that at the sister's death, Donald acquired one-half of the sister's interest, so that at the time of the mortgage agreement, Donald owned a 50% interest in the lease. The court, however, held that the lease constituted personal property which passed to the administrator of the father's estate for distribution along with other personal property. As a result, Donald had no interest to mortgage to Ameriquest, and Richard was entitled to cancellation of the mortgage.

Prescriptive Easement Claim Upheld

Ballato v. Jang

NYLJ 2/17/11

Supreme C., Nassau Cty.

(Brown, J.)

In an action to establish a prescriptive easement, over a paved roadway adjoining landowner's parcel, landowner sought a preliminary injunction preventing neighbor from blocking access to the roadway. The court granted the preliminary injunction, holding that landowner had demonstrated a likelihood of success on the merits.

Landowner's parcel is improved with a commercial office building and attached garage. Since at least 1986, landowner and its predecessors have used a paved roadway, 28-feet wide and 100-feet long, immediately adjacent to their boundary line to obtain access to a garage and parking in the rear of the parcel. Recently, neighbor erected a fence on the true property line, blocking vehicle access to landowner's garage. Landowner then brought this action seeking title by adverse possession or, in the alternative, a prescriptive easement, to the roadway. On this motion, landowner sought a preliminary injunction requiring removal of the fence.

In granting the preliminary injunction, the court emphasized that the landowner had demonstrated open, notorious and continuous use for more than ten years, while neighbor had come forward with no evidence to rebut the presumption of a prescriptive easement that arises from open, notorious, and continuous possession. In addition, landowner had demonstrated irreparable harm in the form of deprivation of access to their garage. As a result, landowner was entitled to a preliminary injunction, even if the result is to reduce the parking spaces available to neighbor's commercial building.

COMMENT

A servient property owner may defeat a prescriptive easement claim by establishing that the servient owner or his predecessor gave express permission to use the alleged easement. Thus, in Beretz v. Diehl, 302 AD2d 808, the court, after trial, dismissed a prescriptive easement claim based on the alleged servient owner's unrefuted testimony that, on more than one occasion, claimant had sought and received express permission to build or rebuild a road over his land. Similarly, when use of an alleged easement originated as a result of an express agreement between neighboring landowners, courts have held that continued use after expiration of the agreement remains permissive until the alleged dominant owner makes the servient owner aware that use has become hostile. For example, in Snapper Realty LLC v. Duane Reade, 800 NYS2 357 (2004), aff'd 33 AD3d 609 (2006) the court looked to the terms of the lease between servient owner's predecessor and a former lessee of dominant owner's property and held that the agreement granting the former lessee the right to park vehicles on the servient lot was sufficient to rebut the presumption of adversity necessary to establish an easement by prescription even though the agreement had subsequently been terminated. The Snapper court also noted that the relationship between the parties' predecessors had been one of cooperation and neighborly accommodation, supporting an inference that the use of the alleged servient parcel was permissive

A number of Second Department cases have indicated that when the user of an alleged easement learns that the land on which the easement sits does not belong to her, the presumption of hostility is rebutted, and no easement by prescription can arise. For instance, in Morales v. Riley, 28 AD3d 623, the Second Department overturned a jury determination that landowner had acquired a prescriptive easement over a strip of neighboring land, relying on landowner's acknowledgment that, within 10 years of taking title to her parcel, she had learned that a portion of her driveway encroached on her neighbor's property. These cases appear peculiar, because a landowner who seeks a prescriptive easement does not claim to own the neighboring land, but only to have acquired an easement to use it.

By contrast, if the landowner claims an easement over vacant land, the Second Department seems willing to assume hostility, and to enable landowner to acquire an easement by prescription. Thus, in Walsh v. Ellis, 64 AD2d 702, the Second Department held that plaintiff was entitled to a prescriptive easement over a circular driveway that traversed a vacant lot adjacent to plaintiff's property. Based on plaintiff's testimony that he used the driveway daily, the Second Department held that plaintiff's established a sufficient level of openness, notoriety and continuity to give rise to an easement by prescription.

Filling of Gully Constitutes Improvement Sufficient to Sustain Adverse Possession Claim

Best & Co. Haircutters, Ltd. v. Semon

NYLJ 2/23/11, p. 25, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In an action to compel a determination of a claim to real property, defendant true owner appealed from Supreme Court's judgment, after a bench trial, concluding that plaintiff had established title by adverse possession. The Appellate Division affirmed, holding that filling a gully, grading the area, and using it for parking purposes was sufficient to satisfy the statutory requirement that the area adversely possessed by “usually cultivated or improved.”

Defendant May department store holds paper title to the disputed 20-foot by 60-foot parcel. The parcel lies between May's parking lot and plaintiff Best's parking lot. In the early 1970s, a gully occupied most or all of the parcel. Plaintiff Best filled and graded the gully in 1974 or 1975, and has been using the parcel for parking ever since. In upholding Supreme Court's determination that Best had established title by adverse possession, the court concluded that the evidence established both that Best's action satisfied the cultivation or improvement requirement in the statute as it existed at the time, and that Best had satisfied all of the rest of the statutory requirements for establishing title by adverse possession.

No Pre-Emption of Local Mobile Home Park Regulation

Willow Woods Manufactured Homeowners Association, Inc. v. R&R Mobile Home Park, Inc.

NYLJ 3/1/11, p. 35, col. 1

AppDiv Second Dept.

(memorandum opinion)

In an action by homeowners association for a judgment declaring a contract of sale invalid, contract vendee appealed from Supreme Court's order denying its motion to dismiss the complaint. The Appellate Division affirmed, holding that Real Property Law ' 233 did not pre-empt Suffolk County regulation giving mobile home park tenants a right of first refusal over the land on which their homes are situated.

R&R owns and operates a mobile home park. In 2008, R&R contracted to sell the park to a developer, subject to the developer obtaining approval to build a shopping center on the site. Suffolk County Code ' 356-6 gives mobile home park tenants a right of first refusal with respect to the park land. Accordingly, R&R sent the tenants a copy of the sale contract. Tenants then incorporated their homeowners association, and the association exercised the right of first refusal, sending a $50,000 down payment check to R&R. The latter returned the check without explanation, and the homeowners association brought this action for a judgment invalidating the contract of sale to the developer, and for an injunction requiring R&R to accept the association's offer to purchase the property. The developer moved to dismiss, contending that Real Property Law ' 23 pre-empted the Suffolk County Code. Supreme Court denied the motion, and the developer appealed. The association cross-appealed from Supreme Court's denial of preliminary injunctive relief.

In affirming, the Appellate Division held that Real Property Law ' 233 pre-empted only local regulation of the landlord-tenant relationship within mobile home parks, but did not pre-empt local regulation of the sale of mobile home park land. The court could not find in ' 233 any express or implied intent to pre-empt the field of mobile home regulation. As a result, the association was entitled to enforce the right of first refusal embodied in the Suffolk County Code. The court also affirmed Supreme Court's denial of preliminary injunctive relief, noting that the notice of pendency filed by the association would provide adequate protection against a closing of title pending final resolution of the action.

COMMENT

Even if local regulation does not directly conflict with state law, and even if the state statute does not expressly pre-empt local law, state legislation pre-empts local regulation when the state legislature impliedly evidences its desire to occupy the entire field of law by enacting a comprehensive regulatory scheme. Thus, in Consolidated Edison Co. of New York Inc. v. Town of Red Hook, 60 N.Y.2d 99,, the Court of Appeals held that Article VIII of the Public Service Law (“Siting of Major Steam Electric Generating Facilities”) represented a comprehensive regulatory scheme which left no room for local regulation. As a result, state law pre-empted a local ordinance which required a certification procedure for all new steam electric generating facilities.

Real Property Law 233 protects mobile home tenants against unwarranted evictions, fees, assessments and restrictions on subleasing, and simultaneously provides park owners a list of occasions that justify eviction. Because of the comprehensive nature of ' 233, the court in Ba Mar v. County of Rockland held that ' 233 preempted local laws establishing the circumstances under which mobile home owner could evict a tenant. Although the court in Willow Woods could have concluded that ' 233 impliedly pre-empted local regulation of first refusal rights, the court instead distinguished Ba Mar by concluding that ' 233 addresses only the rights of landlord and tenant in their capacity as landlord and tenant, while Suffolk County Code
' 356-6, at issue in Willow Woods, addresses the parties in their capacity as property owners.

Real Property Law ' 233-a provides comprehensive instructions on what must occur if a mobile home park owner receives a bona fide offer to buy the park. If a purchaser makes a bona fide offer and indicates an intent to use the land for a different purpose, the statute gives park tenants a right of first refusal. This is precisely what Suffolk County Code ' 356-6, at issue in Willow Woods, attempted to do. It was enacted too late to have bearing on Willow Woods, but the court acknowledges that the sale of mobile home parkland may be pre-empted by ' 233-a. Of course, ' 233-a would not change the result in Willow Woods because the new statute codifies the same right of first refusal embodied in
' 233-a of the Suffolk County Code.

Leasehold Interest Does Not Pass By Operation of Law to Decedent's Heirs

Booth v. Ameriquest Mortgage Co.

NYLJ 2/18/11

Supreme Ct., Suffolk Cty.

(Pines, J.)

In an action to discharge and cancel a leasehold mortgage, the parties consented to a decision based on stipulated facts. Based on those facts, the court canceled the mortgage because the mortgagor had not acquired the leasehold by operation of law at the moment of his father's death.

Decedent father held a leasehold interest on property located in Gilgo Beach. He died intestate in 2000, leaving three adult children, Richard, Gail, and mortgagor Donald. Gail died intestate three weeks later, survived by her two brothers. In 2003, Donald and his wife entered into the subject mortgage agreement with Ameriquest. Richard subsequently brought an action against Donald and his wife to set aside an assignment of a 1998 lease to the property from the father to Donald, and for an accounting of assets Donald and his wife had allegedly taken from the father before and after the father's death. While that action was pending, Donald killed his wife and himself. The Surrogate's Court later issued an order invalidating the 1998 lease and a 2000 assignment of the lease from Donald to himself and his wife. That court also determined that Richard was the sole beneficiary of his father's estate. Based on that judgment, Richard brought this action contending that the mortgage to Ameriquest was void because Donald and his wife had no interest in the lease at the time of the mortgage.

In holding that Ameriquest had never acquired a valid mortgage, the court rejected Ameriquest's argument that at the father's death, each of the three children automatically and immediately acquired a one-third interest in the leasehold as a matter of law. Ameriquest similarly argued that at the sister's death, Donald acquired one-half of the sister's interest, so that at the time of the mortgage agreement, Donald owned a 50% interest in the lease. The court, however, held that the lease constituted personal property which passed to the administrator of the father's estate for distribution along with other personal property. As a result, Donald had no interest to mortgage to Ameriquest, and Richard was entitled to cancellation of the mortgage.

Prescriptive Easement Claim Upheld

Ballato v. Jang

NYLJ 2/17/11

Supreme C., Nassau Cty.

(Brown, J.)

In an action to establish a prescriptive easement, over a paved roadway adjoining landowner's parcel, landowner sought a preliminary injunction preventing neighbor from blocking access to the roadway. The court granted the preliminary injunction, holding that landowner had demonstrated a likelihood of success on the merits.

Landowner's parcel is improved with a commercial office building and attached garage. Since at least 1986, landowner and its predecessors have used a paved roadway, 28-feet wide and 100-feet long, immediately adjacent to their boundary line to obtain access to a garage and parking in the rear of the parcel. Recently, neighbor erected a fence on the true property line, blocking vehicle access to landowner's garage. Landowner then brought this action seeking title by adverse possession or, in the alternative, a prescriptive easement, to the roadway. On this motion, landowner sought a preliminary injunction requiring removal of the fence.

In granting the preliminary injunction, the court emphasized that the landowner had demonstrated open, notorious and continuous use for more than ten years, while neighbor had come forward with no evidence to rebut the presumption of a prescriptive easement that arises from open, notorious, and continuous possession. In addition, landowner had demonstrated irreparable harm in the form of deprivation of access to their garage. As a result, landowner was entitled to a preliminary injunction, even if the result is to reduce the parking spaces available to neighbor's commercial building.

COMMENT

A servient property owner may defeat a prescriptive easement claim by establishing that the servient owner or his predecessor gave express permission to use the alleged easement. Thus, in Beretz v. Diehl, 302 AD2d 808, the court, after trial, dismissed a prescriptive easement claim based on the alleged servient owner's unrefuted testimony that, on more than one occasion, claimant had sought and received express permission to build or rebuild a road over his land. Similarly, when use of an alleged easement originated as a result of an express agreement between neighboring landowners, courts have held that continued use after expiration of the agreement remains permissive until the alleged dominant owner makes the servient owner aware that use has become hostile. For example, in Snapper Realty LLC v. Duane Reade, 800 NYS2 357 (2004), aff'd 33 AD3d 609 (2006) the court looked to the terms of the lease between servient owner's predecessor and a former lessee of dominant owner's property and held that the agreement granting the former lessee the right to park vehicles on the servient lot was sufficient to rebut the presumption of adversity necessary to establish an easement by prescription even though the agreement had subsequently been terminated. The Snapper court also noted that the relationship between the parties' predecessors had been one of cooperation and neighborly accommodation, supporting an inference that the use of the alleged servient parcel was permissive

A number of Second Department cases have indicated that when the user of an alleged easement learns that the land on which the easement sits does not belong to her, the presumption of hostility is rebutted, and no easement by prescription can arise. For instance, in Morales v. Riley, 28 AD3d 623, the Second Department overturned a jury determination that landowner had acquired a prescriptive easement over a strip of neighboring land, relying on landowner's acknowledgment that, within 10 years of taking title to her parcel, she had learned that a portion of her driveway encroached on her neighbor's property. These cases appear peculiar, because a landowner who seeks a prescriptive easement does not claim to own the neighboring land, but only to have acquired an easement to use it.

By contrast, if the landowner claims an easement over vacant land, the Second Department seems willing to assume hostility, and to enable landowner to acquire an easement by prescription. Thus, in Walsh v. Ellis, 64 AD2d 702, the Second Department held that plaintiff was entitled to a prescriptive easement over a circular driveway that traversed a vacant lot adjacent to plaintiff's property. Based on plaintiff's testimony that he used the driveway daily, the Second Department held that plaintiff's established a sufficient level of openness, notoriety and continuity to give rise to an easement by prescription.

Filling of Gully Constitutes Improvement Sufficient to Sustain Adverse Possession Claim

Best & Co. Haircutters, Ltd. v. Semon

NYLJ 2/23/11, p. 25, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In an action to compel a determination of a claim to real property, defendant true owner appealed from Supreme Court's judgment, after a bench trial, concluding that plaintiff had established title by adverse possession. The Appellate Division affirmed, holding that filling a gully, grading the area, and using it for parking purposes was sufficient to satisfy the statutory requirement that the area adversely possessed by “usually cultivated or improved.”

Defendant May department store holds paper title to the disputed 20-foot by 60-foot parcel. The parcel lies between May's parking lot and plaintiff Best's parking lot. In the early 1970s, a gully occupied most or all of the parcel. Plaintiff Best filled and graded the gully in 1974 or 1975, and has been using the parcel for parking ever since. In upholding Supreme Court's determination that Best had established title by adverse possession, the court concluded that the evidence established both that Best's action satisfied the cultivation or improvement requirement in the statute as it existed at the time, and that Best had satisfied all of the rest of the statutory requirements for establishing title by adverse possession.