Real Property Law

Absence of Property Description Renders Deed Ineffective to Convey Title

Maurice v. Maurice

NYLJ 8/7/15, p. 23, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In an action to determine claims of title to real property, brother appealed from Supreme Court's grant of summary judgment to his sister based on the inadequacy of brother's deed. The Appellate Division affirmed, holding that the absence of a property description in brother's deed made the deed ineffective to convey title.

The parties' parents bought the subject property in the 1930s. Their father died in 1980. In 1999, their mother executed a deed conveying property to herself and brother as joint tenants with right of survivorship. The deed, however, contained a blank space above the mother's signature, and no property description. The lot and block number were, however, inscribed on the deed below the mother's signature and the acknowledgement. A “Schedule A,” which included a metes and bounds description, was found in the files of the law firm that prepared the 1999 deed.

In 2005, the mother executed another deed, this time conveying the property to the sister, while reserving to herself a life estate. The mother died in 2007. Based on the papers, Supreme Court awarded summary judgment to sister, and brother appealed.

In affirming, the Appellate Division held that Schedule A could not be incorporated by reference into the 1999 deed because the deed made no reference to the schedule, and that the lot and block number were inadequate to validate the deed because they appeared after the mother's signature and acknowledgment.

Comment

If a property owner signs a deed entirely lacking a property description, the deed is generally void against subsequent purchasers. In Hulburt v. Walker, 258 N.Y. 8, the Court of Appeals held a deed invalid where the transferee procured the property owner's signature on a blank deed, thereafter inserted the property description, and had a notary acknowledge the instrument outside the presence of the property owner, and then transferred the property to purchasers who relied on the acknowledged deed. Id. at 10. The court conceded in dictum that a property owner who negligently signs a blank deed and has it acknowledged may be estopped from repudiating the deed, but concluded that the owner in Hulburt had not been negligent because the owner could not have anticipated that transferee would add both a property description and an acknowledgment to what had previously been, in essence, a blank piece of paper. Id. at 20-21.

Extrinsic evidence may be used to explain ambiguities in a deed that would otherwise be held invalid for an inadequate description of the conveyed property. InZotos v. Davgin, 265 A.D.2d 408, 409,, the court held an ambiguous property description was valid because the location and identity of the properties could be ascertained by looking to previously recorded conveyances ( sufficiently describing the properties ). Id. at 409. The deed in Zotos only referenced: 1) nine towns where the properties were located; and 2) the previous recorded conveyances of the property. Although the property description was by itself inadequate, the court was able to ascertain the specific properties by looking at extrinsic evidence. By contrast, when the extrinsic evidence does not clearly identify the property, a deed with an inadequate description remains void. For example, in Town of Brookhaven v. Dinos, 7 6 A.D.2d 555, 562-563, the court held the deed's vague property description was defective even when read in conjunction with a map offered as extrinsic evidence because the map did not show precisely where the property at issue was located.

A court may use incorporation by reference to compensate for an ambiguous property description if the deed sufficiently identifies the external document in a manner that indicates the parties' intent to make it part of the instrument. In Brainin v. New York, N.H. & H.R. Co., 136 A.D. 393, 395-96, the court held the deed incorporated by reference a map on file in the Westchester County register's office when the deed itself referred to the map and the map had an explanatory note clearly indicating the parties' intent to convey a specific piece of land. However, courts may not use incorporation by reference to remedy an inadequate property description if the deed does not clearly indicate the parties' intent to include external documents. In In re Cross Island Plaza, Inc., No. 12-42491, 2015 WL 4610382 (Bankr. E.D.N.Y. 2015), the court held a deed with a blank property description that does not make any reference or indication to include additional documents could not be saved even though the deed was recorded with several other documents. Because the deed itself made no reference to the outside documents, the court could not determine what the parties' intended to include and would not look to the external documents to supply the deed with a property description. Id. at *10.

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Broker Not Entitled to Summary Judgment When Agreement Might Have Excluded Ultimate Buyer

'NRT New York LLC v. Harding

NYLJ 9/4/15, p. 26, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In an action by broker to recover a commission, broker appealed from Supreme Court's denial of broker's summary judgment motion. The Appellate Division affirmed, holding that the broker had not established, as a matter of law, that the brokerage agreement did not exclude the ultimate buyer from the terms of the agreement.

In 2012, seller and broker entered into an exclusive right-to-sell brokerage agreement. The agreement had a 12-month term, and entitled the broker to a commission on any sale except a sale to one named individual. Broker did not obtain a buyer and the parties negotiated a renewal of the agreement. Seller insisted on one new term: an exclusion from the obligation to pay a commission in connection with a purchase by “a private party identified as James Walker.” During the renewal term, seller entered into contracts to sell the properties to his neighbor, who was not actually named James Walker, but now used that name as a pseudonym to protect his privacy. Seller and “James Walker” closed on the sale, and broker sought a commission. When seller declined to pay, broker brought this action for breach of contract. Supreme Court denied broker's summary judgment motion.

In affirming, the Appellate Division focused on the difference in language between the initial agreement, which excluded one person by name, and the renewal agreement, which excluded only a private party identified as James Walker. In light of the difference in language, the court concluded that facts questions remained about the meaning of the exclusion. The court invoked the principle that some meaning must be assigned to words in a contract, and noted that treating the two clauses as equivalent would accord no meaning to the words “identified as.”

'

Absence of Property Description Renders Deed Ineffective to Convey Title

Maurice v. Maurice

NYLJ 8/7/15, p. 23, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In an action to determine claims of title to real property, brother appealed from Supreme Court's grant of summary judgment to his sister based on the inadequacy of brother's deed. The Appellate Division affirmed, holding that the absence of a property description in brother's deed made the deed ineffective to convey title.

The parties' parents bought the subject property in the 1930s. Their father died in 1980. In 1999, their mother executed a deed conveying property to herself and brother as joint tenants with right of survivorship. The deed, however, contained a blank space above the mother's signature, and no property description. The lot and block number were, however, inscribed on the deed below the mother's signature and the acknowledgement. A “Schedule A,” which included a metes and bounds description, was found in the files of the law firm that prepared the 1999 deed.

In 2005, the mother executed another deed, this time conveying the property to the sister, while reserving to herself a life estate. The mother died in 2007. Based on the papers, Supreme Court awarded summary judgment to sister, and brother appealed.

In affirming, the Appellate Division held that Schedule A could not be incorporated by reference into the 1999 deed because the deed made no reference to the schedule, and that the lot and block number were inadequate to validate the deed because they appeared after the mother's signature and acknowledgment.

Comment

If a property owner signs a deed entirely lacking a property description, the deed is generally void against subsequent purchasers. In Hulburt v. Walker, 258 N.Y. 8, the Court of Appeals held a deed invalid where the transferee procured the property owner's signature on a blank deed, thereafter inserted the property description, and had a notary acknowledge the instrument outside the presence of the property owner, and then transferred the property to purchasers who relied on the acknowledged deed. Id. at 10. The court conceded in dictum that a property owner who negligently signs a blank deed and has it acknowledged may be estopped from repudiating the deed, but concluded that the owner in Hulburt had not been negligent because the owner could not have anticipated that transferee would add both a property description and an acknowledgment to what had previously been, in essence, a blank piece of paper. Id. at 20-21.

Extrinsic evidence may be used to explain ambiguities in a deed that would otherwise be held invalid for an inadequate description of the conveyed property. In Zotos v. Davgin, 265 A.D.2d 408, 409,, the court held an ambiguous property description was valid because the location and identity of the properties could be ascertained by looking to previously recorded conveyances ( sufficiently describing the properties ) . Id. at 409. The deed in Zotos only referenced: 1) nine towns where the properties were located; and 2) the previous recorded conveyances of the property. Although the property description was by itself inadequate, the court was able to ascertain the specific properties by looking at extrinsic evidence. By contrast, when the extrinsic evidence does not clearly identify the property, a deed with an inadequate description remains void. For example, in Town of Brookhaven v. Dinos, 7 6 A.D.2d 555, 562-563, the court held the deed's vague property description was defective even when read in conjunction with a map offered as extrinsic evidence because the map did not show precisely where the property at issue was located.

A court may use incorporation by reference to compensate for an ambiguous property description if the deed sufficiently identifies the external document in a manner that indicates the parties' intent to make it part of the instrument. In Brainin v. New York, N.H. & H.R. Co., 136 A.D. 393, 395-96, the court held the deed incorporated by reference a map on file in the Westchester County register's office when the deed itself referred to the map and the map had an explanatory note clearly indicating the parties' intent to convey a specific piece of land. However, courts may not use incorporation by reference to remedy an inadequate property description if the deed does not clearly indicate the parties' intent to include external documents. In In re Cross Island Plaza, Inc., No. 12-42491, 2015 WL 4610382 (Bankr. E.D.N.Y. 2015), the court held a deed with a blank property description that does not make any reference or indication to include additional documents could not be saved even though the deed was recorded with several other documents. Because the deed itself made no reference to the outside documents, the court could not determine what the parties' intended to include and would not look to the external documents to supply the deed with a property description. Id. at *10.

'

Broker Not Entitled to Summary Judgment When Agreement Might Have Excluded Ultimate Buyer

'NRT New York LLC v. Harding

NYLJ 9/4/15, p. 26, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In an action by broker to recover a commission, broker appealed from Supreme Court's denial of broker's summary judgment motion. The Appellate Division affirmed, holding that the broker had not established, as a matter of law, that the brokerage agreement did not exclude the ultimate buyer from the terms of the agreement.

In 2012, seller and broker entered into an exclusive right-to-sell brokerage agreement. The agreement had a 12-month term, and entitled the broker to a commission on any sale except a sale to one named individual. Broker did not obtain a buyer and the parties negotiated a renewal of the agreement. Seller insisted on one new term: an exclusion from the obligation to pay a commission in connection with a purchase by “a private party identified as James Walker.” During the renewal term, seller entered into contracts to sell the properties to his neighbor, who was not actually named James Walker, but now used that name as a pseudonym to protect his privacy. Seller and “James Walker” closed on the sale, and broker sought a commission. When seller declined to pay, broker brought this action for breach of contract. Supreme Court denied broker's summary judgment motion.

In affirming, the Appellate Division focused on the difference in language between the initial agreement, which excluded one person by name, and the renewal agreement, which excluded only a private party identified as James Walker. In light of the difference in language, the court concluded that facts questions remained about the meaning of the exclusion. The court invoked the principle that some meaning must be assigned to words in a contract, and noted that treating the two clauses as equivalent would accord no meaning to the words “identified as.”

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