You are here: / Real Property Law

CRITERIA FOR AN EASEMENT BY NECESSITY EXPLAINED, NOT MET HERE; THE NECESSITY MUST EXIST AT THE TIME THE LANDLOCKED PARCEL WAS SEVERED; PROOF OF A FUTURE INTENT TO USE THE PARCEL FOR PERSONAL PARKING WAS DEEMED INSUFFICIENT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff did not satisfy the criteria for an easement by necessity for access to a landlocked parcel:

“[T]he party asserting an easement by necessity bears the burden of establishing by clear and convincing evidence . . . that there was a unity and subsequent separation of title, and . . . that at the time of severance an easement over [the servient estate’s] property was absolutely necessary” … .

… [P]laintiff established that he had common ownership of the subject parcels at the time of severance. We agree with defendant, however, that, “inasmuch as the existence and extent of an easement by necessity is determined based on the circumstances as they existed at the time of severance” … , plaintiff failed to establish by clear and convincing evidence that the use and extent of a right-of-way he now seeks was “absolutely necessary” upon separation of title … . While plaintiff generally averred in his affidavit in support of his motion that he retained his landlocked parcel “for purposes of utilizing [the] space for personal parking needs,” any such statement of future intentions failed to establish the nature and extent of the access over the conveyed property that was “indispensable to the reasonable use for the [retained] property” upon severance of title … . Trusso v Brev519, LLC, 2024 NY Slip Op 04880, Fourth Dept 10-4-24

Practice Point: The “necessity” for an easement by necessity must be demonstrated to have existed at the time the landlocked parcel was severed. Proof of a future intent to use the parcel for personal parking was therefore deemed insufficient to support an easement by necessity.

 

, ,

THE PROPERTY IS OWNED BY AN LLC; ALTHOUGH THE PARTIES TO THE PARTITION ACTION ARE EQUAL MEMBERS OF THE LLC, MEMBERS HAVE NO INTEREST IN THE SPECIFIC PROPERTY OF AN LLC; THEREFORE THE PARTITION ACTION WAS NOT AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the partition action could not be maintained because the real property was owned by an LLC and not by tenants in common or a joint tenancy, despite the fact that the parties to the partition action were members of the LLC:

An action for the partition and sale of real property may be maintained by “[a] person holding and in possession of real property as joint tenant or tenant in common” (RPAPL 901[1]). The evidence submitted by the plaintiffs on their summary judgment motion established that, contrary to the allegations in the complaint, the property was owned exclusively by the LLC and not by Emerson, Kasan, and the defendant as tenants in common. Essentially, the plaintiffs contended that the three individual parties held equal membership interests in the LLC, which owned the property. “A membership interest in the limited liability company is personal property. A member has no interest in specific property of the limited liability company” (Limited Liability Company Law § 601). Thus, the individual parties hold no ownership interest in the property. Further, even assuming that the plaintiffs had established that the individual parties held equal membership interests in the LLC, there is no allegation or evidence that the LLC has been dissolved or that the LLC’s affairs have been properly wound up (see id. § 703). Accordingly, this action, inter alia, for partition and sale of the LLC’s property cannot be maintained … . 459 Wash. Ave., LLC v Atkins, 2024 NY Slip Op 04538, Second Dept 9-25-24

Practice Point: Although the partition action would have been available if the parties were joint tenants or tenants in common, it was not available because the property was owned by an LLC of which the parties were equal members. Members of an LLC have no interest in the specific property of the LLC.

 

, ,

HERE THE RIGHT OF FIRST REFUSAL IN THE ORIGINAL DEED DIVIDING THE PROPERTY INTO EIGHT PARTS WAS A VALID DEFENSE TO THE PARTITION ACTION; HOWEVER, IF DEEMED TO RUN WITH THE LAND, THE RIGHT OF FIRST REFUSAL VIOLATED THE RULE AGAINST PERPETUITIES (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the right of first refusal in the original deed which divided the property into eight parts was a valid defense to the partition action. However the right of first refusal could not be enforced because it violated the rule against perpetuities:

A right of first refusal . . . is a preemptive or contractual right to ‘receive an offer'” … . “[I]t is a restriction on the power of one party to sell without first making an offer of purchase to the other party upon the happening of a contingency” … . A reasonable, valid, and enforceable right of first refusal constitutes a good defense to a partition action … . However, with narrow exceptions not applicable here, rights of first refusal are subject to the rule against perpetuities and are thus invalid if it is possible for the future interests they represent to vest outside the prescribed time period (see EPTL 9-1.1[b] …).

Here, the 1966 deed demonstrates that the right of first refusal was for the benefit of the original grantees only … . Moreover, to the extent that the surrounding circumstances demonstrate an intent that the covenant should run with the land … , the restriction would violate the rule against perpetuities (see EPTL 9-1.1[b]…). Block 865 Lot 300, LLC v Baione, 2024 NY Slip Op 04189, Second Dept 8-14-24

Practice Point: A right of first refusal in a deed is a valid defense to a partition action.

Practice Point: Here the right of first refusal in the original deed applied only to the original grantees and, if deemed a covenant which runs with the land, it violated the rule against perpetuities.

 

, ,

IN THIS PARTITION ACTION, THERE WAS NO PENDING MOTION FOR SUMMARY JUDGMENT AND THERE WAS NO INDICATION THE PARTIES HAD LAID THEIR PROOF BARE SUCH THAT THE COURT COULD CONSIDER GRANTING SUMMARY JUDGMENT; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the judge should not have granted summary judgment in the absence of a motion and a hearing. The underlying issue is whether the subject real property should be partitioned or sold at auction:

… [D]efendant and decedent made an oral motion for … a hearing on whether the property could be partitioned. Rather than decide that motion, the court directed the parties to exchange expert reports and set the matter down for a conference, at which time a hearing would be scheduled if the parties could not come to an agreement regarding partition. However, when the parties appeared for the scheduled conference, the court did not set a date for the hearing, but, instead, held the conference, and subsequently, in effect, granted summary judgment to plaintiffs. Because “there was no motion for summary judgment pending before the court at that time, . . . it was error for the court to grant such relief” … . Although a court “has the power to award summary judgment to a nonmoving party, predicated upon a motion for the relief by another party, it may not sua sponte award summary judgment if no party has moved for summary judgment . . . , unless it appears from a reading of the parties’ papers that they were deliberately charting a course for summary judgment by laying bare their proof” … . Here, contrary to plaintiffs’ contention, it does not appear that the parties were deliberately charting a course for summary judgment. Indeed, the only motion pending before the court was the oral motion of defendant and decedent for … a hearing. Therefore, we reverse … and remit the matter for a hearing on whether the property may be partitioned without undue prejudice and for an accounting. The accounting shall be held “before interlocutory judgment is rendered” (RPAPL 911 …). Smith v Smith, 2024 NY Slip Op 02478, Fourth Dept 5-3-24

Practice Point: Generally a judge cannot grant summary judgment absent a motion.

Practice Point: If the parties lay bare all their proof indicating they have charted a course for summary judgment (not the case here), the court may award summary judgment absent a motion.

 

,

THE RESTRICTIVE COVENANT LIMITED THE USE OF THE PROPERTY TO ONLY “SINGLE-FAMILY RESIDENTIAL PURPOSES;” USE OF THE PROPERTY FOR SHORT-TERM RENTALS THROUGH AIRBNB VIOLATES THE RESTRICTIVE COVENANT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Powers, determined that a restrictive covenant from a common grantor restricting the use of the property to only “single-family residential purposes” prohibited plaintiff from using the property for short-term rentals through Airbnb. Such use is not “residential:”

… [T]he restrictive covenant limits the permissible use to only “single[-]family residential purposes.” This phrase unambiguously directs that all properties within the subdivision must be used for only residential purposes, and, thus, any and all rentals must be to those who would utilize the property for residential purposes — i.e., as a residence. A residence is the location where an individual “actually lives” and is established by “[t]he act or fact of living in a given place for some time” (Black’s Law Dictionary [11th ed 2019], residence). Although there is no express durational requirement, a stay in a short-term rental property does not meet this definition … . Lodgers in short-term rental properties do not live on the premises but are instead on a short trip and often maintain a residence elsewhere where they “actually live[ ]” (Black’s Law Dictionary [11th ed 2019], residence). This is true even though lodgers may have access to the entirety of the property and may use it in the same manner as a resident, including by cooking meals and sleeping as plaintiff highlighted. West Mtn. Assets LLC v Dobkowski, 2024 NY Slip Op 02355, Third Dept 5-2-24

Practice Point: Here the restrictive covenant limited the use of the property to “residential” use. A “residence” is where someone actually lives, not where someone stays for a short time while on a trip. Therefore the restrictive covenant precluded short-term rentals of the property through Airbnb.

 

, , , , ,

IN THIS ACTION BY A PROPERTY OWNER WHO LOST THE PROPERTY TO FORECLOSURE: (1) THE JUDGE SHOULD NOT HAVE GRANTED DEFENDANT REAL ESTATE BROKERS SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION; AND (2) THE BREACH OF FIDUCIARY DUTY, BREACH OF REAL PROPERTY LAW 441-C, AND CONSTRUCTIVE TRUST CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversed Supreme Court in this action against real state brokers who, plaintiff alleged, did not provide plaintiff with proper documentation for a short sale of plaintiff’s property. The short sale was not approved by the lender and plaintiff lost the property in foreclosure. The Second Department determined: (1) the judge should not have granted summary judgment to defendants on the ground plaintiff suffered no damages because that issue was not raised by defendants in the motion; (2) the breach of fiduciary duty cause of action should not have been dismissed; (3) the Real Property Law section 441-c action alleging defendants acted with “untrustworthiness and incompetency” should not have been dismissed; and (4) the constructive-trust cause of action should not have been dismissed:

A court is generally limited to the issues or defenses that are the subject of the motion … . * * *

“[I]t is well settled that a real estate broker is a fiduciary with a duty of loyalty and an obligation to act in the best interests of the principal” … . * * *

… [T]he causes of action pursuant to Real Property Law § 441-c(1)(a) and 19 NYCRR 175.4, alleging that they acted with “untrustworthiness and incompetency” in dealing with the plaintiff and the property [should not have been dismissed].. … [T]here exists a private right of action for such offenses … . Perez v Mendicino, 2024 NY Slip Op 01323, Second Dept 3-13-24

Practice Point: A judge does not have the authority to grant summary judgment on a ground not raised in the motion papers;

Practice Point: Real estate brokers owe a fiduciary duty to their clients.

Practice Point: There exists a private right of action for a violation of Real Property Law 441-c for a real estate broker’s “untrustworthiness and incompetency.”

 

, ,

THE CONDITION ATTACHED TO THE SUBDIVISION OF A LOT AND THE SALE OF ONE PARCEL BENEFITTED BOTH THE BUYER AND THE SELLER; THEREFORE THE BUYER ALONE COULD NOT WAIVE THE CONDITION WHEN IT COULD NOT BE MET; THE BUYER’S ACTION FOR SPECIFIC PERFORMANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the condition attached to the sale of a lot by decedent to plaintiff, i.e., that a single-family home be built on the lot, benefited both parties and therefore could not be waived by the plaintiff alone. Plaintiff was unable to procure a building permit but elected to proceed with the sale. The decedent cancelled the sale Plaintiff then brought an action for specific performance which Supreme Court granted:

The contract of sale between the plaintiff and the decedent for the subject property provided in a rider that it was subject to the plaintiff obtaining an as-of-right building permit to build a single-family residence. The plaintiff was subsequently unable to obtain a building permit because a covenant of conditions had never been filed to complete the process of subdividing Norman’s single parcel into the two parcels referred to as 112 Jessup Lane and 114 Jessup Lane. The plaintiff’s and the decedent’s efforts to have the covenant filed so as to complete the subdivision process failed. * * *

Generally, “the party for whose benefit a condition is inserted in an agreement may waive the condition and accept performance as is” … . “However, where the relevant circumstances reveal that the condition has been inserted for the benefit of both parties to the agreement, either party may validly cancel the contract upon failure of the condition, and the condition may be waived only by the mutual assent of both parties” … . …

Inasmuch as the building permit could only be obtained if the subdivision of the property were completed, that condition cannot be interpreted as existing solely for the benefit of the plaintiff where the decedent retained an interest in the other lot to be included in the subdivision … . D&J Realty Partners, LLC v Booth, 2024 NY Slip Op 01169, Second Dept 3-6-24

Practice Point: With respect to the sale of real property, if a condition of the sale, here the construction of a single-family residence on the lot to be sold, benefits only one party, the condition can be waived by that party. Here, however, the condition benefitted both parties and could only be waived by the consent of both.

 

,

A DEEDED EASEMENT CAN ONLY BE CREATED WHEN THE GRANTOR OWNS THE DOMINANT AND SERVIENT PROPERTY; HERE THE CRITERIA FOR A DEEDED EASEMENT WERE NOT MET; BUT THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs did not demonstrate they had a deeded easement over the disputed land, but did demonstrate they had a prescriptive easement, although the extent of the easement must be determined at trial:

“An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it . . . and a grant of the land carries with it the grant of the easement” … . “An easement appurtenant occurs when [an] easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate” … . However, “[t]he long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so called ‘stranger to the deed,’ does not create a valid interest in favor of that third party” … . Thus, “[f]or an easement by grant to be effective, the dominant and servient properties must have a common grantor” … .

Here, the defendant made a prima facie showing of his entitlement to judgment as a matter of law declaring that the plaintiffs do not have a deeded easement over the disputed area by “establishing that, at the time the easement was purportedly created, the grantor owned the servient property, but not the dominant property … .  * * *

… [P]laintiffs established … their predecessors in interest acquired an easement by prescription over the disputed area, which easement ran with the land when the plaintiffs purchased the property in 2018 … . Notably, the defendant learned of the purported deeded easement in 2005 and assumed that it was valid until at least July 2019. Therefore, the defendant’s relationship to the dominant estate’s use of the driveway area was one of acquiescence, rather than permission … . … Supreme Court erred in denying that branch of the plaintiffs’ cross-motion which was for summary judgment declaring that they have a prescriptive easement over the disputed area. Daniello v Wagner, 2023 NY Slip Op 06116, Second Dept 11-29-23

Practice Point: The criteria for a deeded easement and a prescriptive easement are clearly explained.

 

, , ,

THE PETITIONERS BROUGHT A HYBRID ARTICLE 78/DECLARATORY JUDGMENT ACTION CHALLENGING A LOCAL LAW PROHIBITING SHORT-TERM RENTAL PROPERTIES; THE COURT NOTED THAT THE SUMMARY PROCEDURE AVAILABLE UNDER ARTICLE 78 SHOULD NOT HAVE BEEN APPLIED TO THE DECLARATORY-JUDGMENT ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that in a hybrid Article 78/declaratory judgment/damages action, the summary procedure under Article 78 does not apply to the declaratory judgment. In order to summarily dispose of the declaratory judgment/damages aspect of the action, a party must request it or the court must notify the parties. Here the petitioners, owners of short-term rental properties, challenged the local law prohibiting rental periods of less than 14 days:

“In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those to recover damages and for declaratory relief, on the other hand. The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment” … . “[W]here no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action”… .

Here, the record contains no indication that the Supreme Court gave notice to the parties that it was contemplating the summary dismissal of the declaratory judgment causes of action, or that the respondents/defendants had made an application for such relief. Therefore, the court erred in summarily disposing the causes of action for declaratory relief … . Matter of Jellyfish Props., LLC v Incorporated Vil. of Greenport, 2023 NY Slip Op 05136, Second Dept 10-11-23

Practice Point: In a hybrid Article 78/declaratory judgment action, the summary procedure available under Article 78 cannot be used to dispose of the declaratory judgment action unless a party requests it or the court so notifies the parties.

 

, , , , ,

BECAUSE INDIVIDUAL CONDOMINIUM OWNERS ARE RESPONSIBLE FOR THE INSTALLATION OF WINDOW GUARDS, THE DEFENDANT CONDOMINIUM DID NOT HAVE A DUTY TO INSTALL WINDOW GUARDS; THEREFORE THE CONDOMINIUM COULD NOT BE LIABLE FOR PLAINTIFFS’ DAUGHTER’S FALL FROM THE WINDOW UNDER THE FAILURE-TO-INSTALL THEORY; HOWEVER, THE CAUSE OF ACTION BASED UPON THE CONDOMINIUM’S FAILURE TO GIVE PLAINTIFFS NOTICE OF THE CITY’S WINDOW-GUARD REQUIREMENT SURVIVED THE DISMISSAL MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the condominium (Cherry Tower) premised on the failure to install window guards should have been granted. Plaintiffs’ five-year-old daughter fell from the fifth floor window and died. Defendants submitted the deed to the condominium in support of their motion to dismiss. Because plaintiffs owned the condo unit, the defendants had no duty to install window guards. However, the cause of action alleging defendants’ failure to give notice of the window-guard requirements in the NYC Administrative Code properly survived dismissal:

“The characteristics of condominium ownership are individual ownership of a unit, an undivided interest in designated common elements, and an agreement among unit owners regulating the administration and maintenance of property” … . Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the documentary evidence submitted by the Cherry Tower defendants, including the deed demonstrating that the unit owners purchased the subject apartment in 2007 and the condominium bylaws placing the responsibility to install and maintain window guards on the unit owners, conclusively demonstrates that the Cherry Tower defendants had no duty to install window guards in the subject apartment (see Administrative Code of City of NY § 27-2043.1[a]; Real Property Law § 339-ee[1] …).

However, the Supreme Court properly denied that branch of the Cherry Tower defendants’ motion which was to dismiss so much of the complaint as was based on their failure to provide the plaintiff with notice of the window guard requirements. Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the complaint sufficiently alleges that the Cherry Tower defendants failed in their responsibility to deliver the required notice to the subject apartment (see Administrative Code § 17-123[b]). Kwan v Kuie Chin Yap, 2023 NY Slip Op 05005, Second Dept 10-4-23

Practice Point: The individual owners of condominium units are responsible for the installation of window guards. Therefore the condominium itself has no duty to do so. However, in New York City, the condominium must provided the individual owners with notice of the window-guard requirement in the NYC Administrative Code.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy