Real Property Law

In awarding summary judgment to true owner, the court relied on the 2008 adverse possession statute, which deems permissive the existence of de minimis non-structural encroachments including shrubbery, plantings, and sheds and which also deems permissive the acts of lawn mowing or similar maintenance. Because adverse possessor's claim had not vested before 2008, the new statute was applicable. The court rejected adverse possessor's effort to tack his possession on to that of his predecessors, noting first that his predecessor had testified that the shed the predecessor had erected never encroached into the disputed strip, and second that adverse possessor had presented “no evidence that their predecessors intended to and actually turned over possession of the disputed property with the portion of the land included in the deed.” Finally, the court denied adverse possessor's motion to amend the complaint to add a cause of action based on the doctrine of practical location of boundaries, noting that there was no evidence to suggest that true owner had every acquiesced in the fence as the boundary between the parcels.

COMMENT

A current occupier of a boundary strip can tack possession to a predecessor if the successive owner presents evidence that the prior owner intended to transfer the undescribed portion of the parcel. Testimony of a prior owner's representative is usually sufficient to support a tacking claim. The court in Brand v. Prince, 35 N.Y.2d 634, relied on testimony by the lawyer of the estate that sold the property to the current owner, and held that pointing out the boundary lines to the successive owner at the time of sale was sufficient evidence of an intent to turn over possession of the property.

Even without the testimony of the seller or the seller's representative, a tacking claim may succeed based on the successor owner's own testimony that the prior owner had indicated that the disputed strip was part of the land conveyed. In Eddyville Corp. v. Relyea, 35 A.D.3d 1063, the court held that successor owner's testimony that the predecessor had made it clear that successor would be entitled to use the strip for parking cars and storing boats was sufficient to support a tacking claim. In Eddyville, there was also testimony from prior tenants who testified that the strip had always been treated as part of the parcel conveyed.

On the other hand, a mere statement by the current occupant that he had knowledge of the prior owner's intent, without testimony about any manifestations of that intent, is not enough to support a tacking claim. Thus, in MKG Georgica LLC v. Popcorn, 2015 NY Slip Op 30255, Suffolk County Supreme Court found successor's testimony of his 'first-hand knowledge' of the prior owner's intent insufficient to overcome true owner's summary judgment motion. In MKG, the current adverse possessor purchased from an estate, so the prior owner could have exhibited no manifestations of an intent to transfer the disputed land to the current occupant.

Issues of Fact Preclude Injunction Requiring Removal of Encroachments

Kimball v. Bay Ridge United Methodist Church
NYLJ 1/26/18, p. 26., col. 4., AppDiv, Second Dept.
(memorandum opinion)

In landowner's action against a neighboring church for declaratory and injunctive relief, landowner appealed from Supreme Court's grant of summary judgment to the church on its counterclaim for removal of cladding and a drip edge that encroached on the church's land. The Appellate Division modified, concluding that disputed questions of fact remained about whether the church was entitled to an injunction requiring removal of the encroachments.

Landowner shared a party wall with a church building until the church building was demolished in 20098. In 2015, landowner installed cladding and a drip edge on the wall, and brought this action for declaratory and injunctive relief. The church counterclaimed, seeking an injunction requiring removal of the encroaching cladding and drip edge. Supreme Court granted the injunction, concluding that the cladding and the drip edge encroached on the church's land.

In modifying, the Appellate Division first concluded that Supreme Court had properly found that the cladding and drip edge encroached onto the church's land. But the court then noted that, under RPAPL 871(1), a party seeking to enjoin an encroachment must establish not only the existence of the encroachment, but also that the benefit to be gained by compelling removal would exceed the harm that would result from granting injunctive relief. In this case, triable issues of fact remained about whether the balance of equities weighed in the church's favor. As a result, the church was not entitled to summary judgment.

Statute of Limitations Bars Foreclosure Claim

Deutsche Bank National Trust Co. v. Adrian
NYLJ 2/2/18, p. 27., col. 3., AppDiv, Second Dept.
(memorandum opinion)

In mortgagee bank's foreclosure action, the bank appealed from Supreme Court's grant of mortgagor's motion for summary judgment dismissing the complaint. The Appellate Division affirmed, holding that the statute of limitations barred the bank's foreclosure action.

In 2006, mortgagor executed a mortgage to secure a note. After mortgagor defaulted on the note, mortgagee brought a foreclosure action on April 11, 2008, thus accelerating the debt. On April 8, 2014, mortgagee bank send mortgagor a 90-day notice pursuant to RPAPL 1304, but then discontinued the foreclosure action. On July 8, 2014, mortgagee brought the instant action to foreclose on the same mortgage. Mortgagor moved to dismiss, contending that the action was time-barred under the six-year statute of limitations, and mortgagee bank appealed.

In affirming, the Appellate Division held that mortgagee's filing of the initial foreclosure action constituted an election to accelerate the entire debt, and that mortgagee's discontinuance of that action did not constitute an affirmative act revoking the election to accelerate. As a result, the current foreclosure action was time-barred because it was not institute until more than six years after mortgagee bank's initial election.

Permission Bars Prescriptive Easement Claim

Serafin Props. v. Amore Enters. Inc.
NYLJ 2/13/18, p. 17., col. 3., Supreme Ct., Erie Cty.
(Walker, J.0.)

In an action by landowner to establish a prescriptive easement over neighbor's abutting property, the parties went to trial after the court denied their respective summary judgment motions. After a bench trial, the court concluded that landowner's use of the disputed parcel had been permissive, and accordingly held that landowner did not have a prescriptive easement.

Landowner, neighbor, and two other owners own parcels in a small industrial park. Owners of all of the parcels had used the driveway on neighbor's land for more than a decade before landowner acquired its parcel from one of its affiliates in 2007. Neighbor contended that the use was permissive, precluding a prescriptive easement claim.

In awarding judgment to neighbor, the court relied on testimony by neighbor's president that, before neighbor purchased the property, he had confirmed, before the village board, that he would continue to permit other members of the industrial park to use the driveway as long as there was some chipping in of repairs. The court also relied on a 1995 letter from attorneys from neighbor's predecessor to landowner's predecessor confirming that neighbor has permitted the predecessor and its tenants to use the driveway, and reiterating that “there is no easement benefitting” landowner's property.