Real Property Law

AppDiv, Second Dept.

(memorandum opinion)

In landowners' action against neighbors for injunctive relief and damages resulting from trespass and nuisance, landowners appealed from Supreme Court's grant of summary judgment dismissing the complaint against neighbors. The Appellate Division modified, holding that landowners had raised questions of fact about whether neighbors had drained water onto landowners' parcel by artificial means.

After neighbors made improvements to their land, landowners suffered water damage, and brought this action. Supreme Court awarded summary judgment to neighbors, relying on the rule that an improver is not liable for damages to abutting property caused by the flow of surface water resulting from good-faith improvements. Landowners appealed.

In affirming, the Appellate Division acknowledged the general rule that improvements do not generate liability, but also noted an exception when the water is drained onto other property by artificial means such as pipes and ditches. In this case, landowners had adduced evidence that a gutter downspout located on neighbors' land and a drainage pipe installed under neighbors' new driveway had diverted runoff onto landowners' parcel. As a result, neighbors were not entitled to summary judgment. The court also held that Supreme Court had properly dismissed landowners' cause of action for violation of provisions of the village code, noting that the code sections do not provide for a private right of action.

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Deed to Secure Debt Treated As Mortgage

Patmos Fifth Real Estate Inc. v. Mazl Building LLC

NYLJ 6/17/16, p. 23, col. 5

AppDiv, First Dept.

(memorandum opinion)

In an action by mortgagors to vacate a deed recorded by mortgagees, mortgagors appealed from Supreme Court's denial of their summary judgment motion. The Appellate Division modified to grant the summary judgment motion, to declare that mortgagors are the sole owners of the property, and to dismiss mortgagees' defenses of laches and estoppel.

Mortgagors bought the subject building from mortgagees in 2006, financing the purchase with a consolidated mortgage. Mortgagors defaulted on the mortgage, and mortgagees agreed to forebear and extend additional time. In February 2009, the parties agreed to an additional loan, a final extension, and a deadline. In connection with the extension, mortgagors executed a deed to mortgagees. Mortgagees were to hold the deed in escrow and the deed was not to be released from escrow unless and until mortgagors defaulted. Mortgagors again defaulted, and on Dec. 23, 2009, mortgagees filed and recorded the deed. Mortgagors then brought this action on July 21, 2011, alleging that mortgagees had improperly filed the deed without first commencing foreclosure proceedings, as required by section 320 of the Real Property Law.

The Appellate Division held that mortgagors were entitled to a declaration that they were the sole owners of the property, noting that section 320 codifies the common law principle that giving a deed to secure a debt creates only a mortgage, not matter how the transaction is structure. Here, a member of mortgagee conceded that the deed was designed to secure a debt, confirming the clear language of the agreement between the parties. The court also rejected mortgagees' laches and estoppels defenses, but held that mortgagors were not entitled to dismissal of counterclaims for foreclosure, for breach of a 2008 guarantee, and for unjust enrichment.

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Hostility Supports Prescriptive Easement Claim

Rundberg v. Rundberg

2016 WL 3323892, June 16, 2016

AppDiv, Third Dept.

(Opinion by McCarthy, J.P.)

In landowner's trespass action, landowner appealed from Supreme Court's determination, after a nonjury trial, that neighbor had acquired a prescriptive easement claim for maintenance of a sewer line. The Appellate Division affirmed, holding that neighbor's refusal of requests to remove the sewer line supplied the requisite hostility to support the prescriptive easement claim.

Landowner and neighbor own adjacent parcels. Neighbor's deceased husband was landowner's brother. In 1995, when landowner moved on to his parcel, he became aware that his brother had installed a sewer line running through landowner's parcel. During 1996 and 1997, landowner made three requests that his brother remove the sewer line. The brother rejected all three requests. In 2012, landowner brought this trespass action, and Supreme Court awarded judgment in favor of neighbor, concluding that neighbor had established a prescriptive easement.

In affirming, the Appellate Division noted that the hostility necessary to establish a prescriptive easement claim is not generally presumed whether parties are related by blood. In this case, however, the rejection of three separate requests to remove the sewer line unequivocally notified landowner of a hostile prescriptive easement claim. Since hostility was established in 1996, landowner had acquired the easement no later than 2006, before enactment of the current adverse possession statute.

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