Real Property Law

Same-Sex Couple Entitled to Partition

Taylor v. Taylor

NYLJ 3/29/11

Supreme Ct., Westchester Cty.

(Giacomo, J.)

In a partition action brought by one spouse in a same-sex couple, the defendant spouse moved to dismiss. The court denied the motion, holding that each spouse has a right to partition property held as tenants in common.

The couple acquired the subject property, which they used as their home, in July 2008. They took title as tenants in common. Five months later, they executed a prenuptial agreement providing that upon sale of the home, the amount paid by each spouse would be returned to the person who paid the money, and any profit would be shared equally. In December 2008, the parties married in Connecticut. Less than two years later, plaintiff spouse filed an action for divorce, which was discontinued by stipulation on Oct. 8, 2010. Plaintiff spouse then brought this partition action on Nov. 5, 2010, seeking a sale and an accounting of proceeds. Defendant spouse moved to dismiss, arguing that the court could not direct sale unless it altered the legal relationship between the parties.

In denying defendant spouse's motion to dismiss, the court first rejected the argument that partition of the property should be within the exclusive province of a matrimonial action. The court noted that nothing precluded defendant spouse from bringing a divorce action, and then held that in any event, plaintiff, as a tenant in common may bring a partition action regardless of the parties' marital status.

COMMENT

Although tenants in common generally have a right to partition, when a married couple become tenants in common by virtue of a divorce, the terms of the divorce judgment limit the parties' right to partition. Thus, in Ripp v. Ripp, 38 AD2d 65, affd 32 NY2d 755, the court held that when a divorce judgment awarded exclusive possession of the marital home to the wife, the husband could not, four months later, prevail in an action for partition of the home. In dismissing the partition action, the court concluded that equitable factors between parties who were formerly tenants by the entirety “are better evaluated by the court which determined the matrimonial litigation between the parties.”

If the court in a divorce action awards possession to one of the spouses, but does not specify a time frame that spouse is permitted to be in sole possession, courts are unclear about how long this sole possession should last. In Pando v. Tapia (79 A.D.3d 993) a former husband brought an action for partition and sale of marital property, sole possession of which was granted to the wife 30 years prior. The court ruled that “[p]assage of approximately 30 years was a reasonable period of time for expiration of ex-wife's exclusive possession of real property under judgment of divorce, which she co-owned as tenant in common, absent stated duration in judgment of divorce.” In Pando, the former husband brought an action for partition and sale of marital property, the possession of which was granted to the wife 30 years prior. Similarly, in Sherman v. Sherman (168 A.D.2d 550), the court ruled that after 11 years of possession of the marital residence and the emancipation of the couple's children, the wife's right to exclusive possession should be terminated. The couple had entered into a stipulation of settlement in connection with the divorce action that provided the wife with exclusive use and occupancy of the residential portion of the marital premises with no termination date of the right to possession. The court also stated that: “Absent an express or implied agreement to the contrary, the right to exclusive occupancy will be deemed limited to a reasonable duration.”

Unit Owner's Claim Against Town, Association Board

Molander v. Pepperidge Lake Homeowners Association

NYLJ 4/5/11, p. 31, col. 5

AppDiv, Second Dept.

(memorandum opinion)

Owners of a unit in a homeowners association brought this action against the association, the town, and a neighboring unit owner challenging a fine, alleging their constitutional rights had been violated, and seeking to require the association to enforce the declaration against neighboring unit owner. Supreme Court granted summary judgment to all defendants. The Appellate Division modified, holding that the board had not demonstrated entitlement to judgment as a matter of law on the claim seeking to compel the board to enforce the declaration.

Unit owners sought to construct a third-story dormer on their unit. New York's Department of State required installation of a sprinkler system, even though a neighboring unit with a similar dormer does not have a sprinkler system. The town issued a building permit, conditioned on installation of a sprinkler system. Unit owner then built the dormer. The board of the homeowners association then imposed a $2,500 fine for building the dormer without the board's approval. Unit owner then brought this action, complaining about the fine, the sprinkler requirement, and the fact that the board had not enforced the declaration against the neighboring unit owner. Supreme Court granted summary judgment to all defendants.

In modifying, the Appellate Division first dismissed the constitutional claims against the town defendants, noting that the town had demonstrated a legal justification for the sprinkler requirement, and had demonstrated that the town was not acting out of any impermissible motive. The court then held that the business judgment rule protected the board and its members against any claim arising out of the board's imposition of a fine. The court did hold, however, that Supreme Court should have denied the board's summary judgment motion with respect to unit owner's claim to compel the board to enforce the declaration against other unit owners, including the unit next door. The court noted that the Declaration stated one of the association's purposes as administering and enforcing covenants and restrictions. Finally, the court held that Supreme Court had properly dismissed unit owners' nuisance claims against neighboring owners, holding that unit owners had failed to demonstrate that their neighbors had interfered with use of unit owners' property.

Statute of Limitations and Laches Bars Owner's Claim

WPA Acquisition Corp. v. Lynch

NYLJ 4/5/11, p. 29, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In landowner's action to quiet title, landowner appealed from Supreme Court's grant of summary judgment to neighboring owners holding that neighboring owners had title to the disputed land and a right of egress over a private road. The Appellate Division affirmed, holding that landowner's claim was barred by laches and the statute of limitations.

Neighboring owners live in a subdivision just east of a main road in Newburgh. Their subdivision has a private road, Tom's Lane, which provides access to the main road. Landowner own a parcel to the east of the subdivision and, in this action, contends that it also has title to a 50-foot-wide strip of land that runs through the subdivision (and through many of the lots of neighboring owners), and ultimately meets the private road. Landowner brought this action to quiet title to the strip. Supreme Court held that laches required dismissal of landowner's claim.

In affirming, the Appellate Division held that the statute of limitations, as well as laches, mandated dismissal of the action. In particular the court noted that neighboring landowner had submitted certificates of occupancy for two of the houses on the disputed strip, establishing that they were in existence more than 10 years before commencement of the action. In addition, the court relied on proof that a driveway had been constructed on a portion of the strip, and that neighboring owners had been using Tom's Lane for more than 10 years.

Abandonment Precludes Wrongful Eviction Action

Salem v. U.S. Bank National Association

NYLJ 3/15/11, p. 35, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In former owner's wrongful eviction action, former owner appealed from Supreme Court's grant of summary judgment to defendant foreclosure sale purchasers. The Appellate Division affirmed, holding that former owner had abandoned the premises, precluding any wrongful eviction action.

After purchasing at a foreclosure sale, the bank changed the locks. Former owner admitted that before the locks were changed, she had moved her furniture to a different residence, and had obtained utility service in her name at that residence. Moreover, representatives sent to the premises by the foreclosure sale purchaser discovered the doors unlocked, the house substantially empty, and clothing strewn on the floor as if it were trash. Based on these conceded facts, the Appellate Division held that former owner had abandoned the premises and could not recover for wrongful eviction or for trespass.

Same-Sex Couple Entitled to Partition

Taylor v. Taylor

NYLJ 3/29/11

Supreme Ct., Westchester Cty.

(Giacomo, J.)

In a partition action brought by one spouse in a same-sex couple, the defendant spouse moved to dismiss. The court denied the motion, holding that each spouse has a right to partition property held as tenants in common.

The couple acquired the subject property, which they used as their home, in July 2008. They took title as tenants in common. Five months later, they executed a prenuptial agreement providing that upon sale of the home, the amount paid by each spouse would be returned to the person who paid the money, and any profit would be shared equally. In December 2008, the parties married in Connecticut. Less than two years later, plaintiff spouse filed an action for divorce, which was discontinued by stipulation on Oct. 8, 2010. Plaintiff spouse then brought this partition action on Nov. 5, 2010, seeking a sale and an accounting of proceeds. Defendant spouse moved to dismiss, arguing that the court could not direct sale unless it altered the legal relationship between the parties.

In denying defendant spouse's motion to dismiss, the court first rejected the argument that partition of the property should be within the exclusive province of a matrimonial action. The court noted that nothing precluded defendant spouse from bringing a divorce action, and then held that in any event, plaintiff, as a tenant in common may bring a partition action regardless of the parties' marital status.

COMMENT

Although tenants in common generally have a right to partition, when a married couple become tenants in common by virtue of a divorce, the terms of the divorce judgment limit the parties' right to partition. Thus, in Ripp v. Ripp, 38 AD2d 65, affd 32 NY2d 755, the court held that when a divorce judgment awarded exclusive possession of the marital home to the wife, the husband could not, four months later, prevail in an action for partition of the home. In dismissing the partition action, the court concluded that equitable factors between parties who were formerly tenants by the entirety “are better evaluated by the court which determined the matrimonial litigation between the parties.”

If the court in a divorce action awards possession to one of the spouses, but does not specify a time frame that spouse is permitted to be in sole possession, courts are unclear about how long this sole possession should last. In Pando v. Tapia (79 A.D.3d 993) a former husband brought an action for partition and sale of marital property, sole possession of which was granted to the wife 30 years prior. The court ruled that “[p]assage of approximately 30 years was a reasonable period of time for expiration of ex-wife's exclusive possession of real property under judgment of divorce, which she co-owned as tenant in common, absent stated duration in judgment of divorce.” In Pando, the former husband brought an action for partition and sale of marital property, the possession of which was granted to the wife 30 years prior. Similarly, in Sherman v. Sherman (168 A.D.2d 550), the court ruled that after 11 years of possession of the marital residence and the emancipation of the couple's children, the wife's right to exclusive possession should be terminated. The couple had entered into a stipulation of settlement in connection with the divorce action that provided the wife with exclusive use and occupancy of the residential portion of the marital premises with no termination date of the right to possession. The court also stated that: “Absent an express or implied agreement to the contrary, the right to exclusive occupancy will be deemed limited to a reasonable duration.”

Unit Owner's Claim Against Town, Association Board

Molander v. Pepperidge Lake Homeowners Association

NYLJ 4/5/11, p. 31, col. 5

AppDiv, Second Dept.

(memorandum opinion)

Owners of a unit in a homeowners association brought this action against the association, the town, and a neighboring unit owner challenging a fine, alleging their constitutional rights had been violated, and seeking to require the association to enforce the declaration against neighboring unit owner. Supreme Court granted summary judgment to all defendants. The Appellate Division modified, holding that the board had not demonstrated entitlement to judgment as a matter of law on the claim seeking to compel the board to enforce the declaration.

Unit owners sought to construct a third-story dormer on their unit. New York's Department of State required installation of a sprinkler system, even though a neighboring unit with a similar dormer does not have a sprinkler system. The town issued a building permit, conditioned on installation of a sprinkler system. Unit owner then built the dormer. The board of the homeowners association then imposed a $2,500 fine for building the dormer without the board's approval. Unit owner then brought this action, complaining about the fine, the sprinkler requirement, and the fact that the board had not enforced the declaration against the neighboring unit owner. Supreme Court granted summary judgment to all defendants.

In modifying, the Appellate Division first dismissed the constitutional claims against the town defendants, noting that the town had demonstrated a legal justification for the sprinkler requirement, and had demonstrated that the town was not acting out of any impermissible motive. The court then held that the business judgment rule protected the board and its members against any claim arising out of the board's imposition of a fine. The court did hold, however, that Supreme Court should have denied the board's summary judgment motion with respect to unit owner's claim to compel the board to enforce the declaration against other unit owners, including the unit next door. The court noted that the Declaration stated one of the association's purposes as administering and enforcing covenants and restrictions. Finally, the court held that Supreme Court had properly dismissed unit owners' nuisance claims against neighboring owners, holding that unit owners had failed to demonstrate that their neighbors had interfered with use of unit owners' property.

Statute of Limitations and Laches Bars Owner's Claim

WPA Acquisition Corp. v. Lynch

NYLJ 4/5/11, p. 29, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In landowner's action to quiet title, landowner appealed from Supreme Court's grant of summary judgment to neighboring owners holding that neighboring owners had title to the disputed land and a right of egress over a private road. The Appellate Division affirmed, holding that landowner's claim was barred by laches and the statute of limitations.

Neighboring owners live in a subdivision just east of a main road in Newburgh. Their subdivision has a private road, Tom's Lane, which provides access to the main road. Landowner own a parcel to the east of the subdivision and, in this action, contends that it also has title to a 50-foot-wide strip of land that runs through the subdivision (and through many of the lots of neighboring owners), and ultimately meets the private road. Landowner brought this action to quiet title to the strip. Supreme Court held that laches required dismissal of landowner's claim.

In affirming, the Appellate Division held that the statute of limitations, as well as laches, mandated dismissal of the action. In particular the court noted that neighboring landowner had submitted certificates of occupancy for two of the houses on the disputed strip, establishing that they were in existence more than 10 years before commencement of the action. In addition, the court relied on proof that a driveway had been constructed on a portion of the strip, and that neighboring owners had been using Tom's Lane for more than 10 years.

Abandonment Precludes Wrongful Eviction Action

Salem v. U.S. Bank National Association

NYLJ 3/15/11, p. 35, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In former owner's wrongful eviction action, former owner appealed from Supreme Court's grant of summary judgment to defendant foreclosure sale purchasers. The Appellate Division affirmed, holding that former owner had abandoned the premises, precluding any wrongful eviction action.

After purchasing at a foreclosure sale, the bank changed the locks. Former owner admitted that before the locks were changed, she had moved her furniture to a different residence, and had obtained utility service in her name at that residence. Moreover, representatives sent to the premises by the foreclosure sale purchaser discovered the doors unlocked, the house substantially empty, and clothing strewn on the floor as if it were trash. Based on these conceded facts, the Appellate Division held that former owner had abandoned the premises and could not recover for wrongful eviction or for trespass.