You are here: / Real Property Law

COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not have standing to enforce a covenant in an old deed prohibiting the construction of a commercial garage. The covenant was deemed to run only to the first purchaser, and did not run with the land:

​

… [T]he record establishes that the restrictive covenant from the 1924 deed was not part of a common development scheme created for the benefit of subdivision property owners as concerns the plaintiff and the defendants. … At the time of the conveyance, the covenant cannot be said to have benefitted any part of the land burdened by it. … When the land was conveyed to Hudson … , at least as to the lots now owned by the plaintiff …, it was still in a single piece, and Hudson, the absolute owner of it, was free to do with it as it pleased except as against … the original covenantee … . When Hudson decided to divide the property, neither of the deeds embodied any part of the restrictive covenant, or contained any reference thereto. Hudson is the common grantor of the parties, and it sold the property without restrictions. Neither the plaintiff nor [defendant] have any different title from that which they derived through the unrestricted deeds from Hudson … . Thus, the original covenant is not enforceable as between the plaintiff and [defendant] … . Fleetwood Chateau Owners Corp. v Fleetwood Garage Corp., 2017 NY Slip Op 06431, Second Dept 9-13-17

REAL PROPERTY (COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))/DEEDS  (COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))/COVENANTS (DEEDS, COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))

,

CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city had acquired title by adverse possession to a parcel purchased by plaintiff’s predecessors in 1948. The fact that plaintiff had continuously paid taxes on the property did not negate the proof of adverse possession:

In 1948, the plaintiff’s predecessors in interest purchased real property in Brooklyn. For at least 30 years, the subject property, which is in the middle of other lots owned by the defendant, City of New York, has been used by the New York City Department of Sanitation (hereinafter the DSNY) as a truck parking lot. During this time, the DSNY has paved the property, fenced it in, and installed lighting. * * *

Under the law before the 2008 amendments, in order to establish a claim to property by adverse possession, a claimant must prove, inter alia, that possession of the property was: (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period … .

The purpose of the hostility requirement is to provide the title owner notice of the adverse claim through the “unequivocal acts of the usurper”… . A rebuttable presumption of hostility arises from possession accompanied by the usual acts of ownership, and this presumption continues until the possession is shown to be subservient to the title of another … . “Hostility can be inferred simply from the existence of the remaining four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity” … .

… We conclude that the mere payment of taxes on the subject property is insufficient to rebut the presumption. Even assuming that knowledge of the true ownership of the property can be imputed to another municipal department in the City, such knowledge is not sufficient to defeat a claim of adverse possession … . Estate of Vertley Clanton v City of New York, 2017 NY Slip Op 06254, Second Dept 8-23-17

 

REAL PROPERTY (ADVERSE POSSESSION, CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))/ADVERSE POSSESSION (CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))/MUNICIPAL LAW (ADVERSE POSSESSION, CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))

, ,

AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS (SECOND DEPT).

The Second Department determined that residents of a condominium across the street from the proposed construction of beach-front comfort stations did not have standing to contest the construction under the State Environmental Quality Review Act (SEQRA). The court further found that the petitioners’ air, light and access easements could not be asserted against the state, which owns the public road where the construction will be located:

“To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . The alleged harm cannot be “too speculative and conjectural to demonstrate an actual and specific injury-in-fact” … . Close proximity alone is insufficient to confer standing where there are no zoning issues involved, and general environmental concerns will not suffice … . Moreover, “[t]o qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature” … . Here, the petitioners’ alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact … .

“When lands adjoin private property an easement of light, air and access over such property does not exist, under ordinary circumstances, merely because of the proximity of the lands to the private property” … .. However, an owner of land abutting a highway or street possesses, as incident to his or her ownership, easements of light, air, and access, irrespective of whether the owner owns the fee of the highway or the street itself … . Nevertheless, “[w]hen the fee of the highway has been transferred to the State, the State may use the highway for any public purpose not inconsistent with or prejudicial to its use for highway purposes . . . [and] [t]he mere disturbance of the rights of light, air and access of abutting owners on such a highway by the imposition of a new use, consistent with its use as an open public street, must be tolerated by them and no right of action arises therefrom, although such use interferes with the enjoyment of the premises”… . For example, the maintenance of trees on a street for the purposes of ornament and shade has been determined to be a proper street use … .

Here, the proposed construction will not completely block the petitioners’ ocean view nor prevent the petitioners from using the public street. Rather, the length of the dead-end street will be shortened and several public parking spaces will be removed. The turnaround will still be intact, although moved 23 feet to the north, and access to the petitioners’ driveway and building’s entrance will not be impeded … . In addition, the disputed comfort station will be open to, and for the purpose of, serving the public … . Matter of Shapiro v Torres, 2017 NY Slip Op 06281, Second Dept 8-23-17

 

REAL PROPERTY (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/EASEMENTS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/AIR LIGHT AND ACCESS  (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/ENVIRONMENTAL LAW (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STANDING (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/HIGHWAYS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY (SECOND DEPT).

,

ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT.

The Second Department, reversing Supreme Court, determined that the mortgage-holder’s motion for a default judgment and order of reference should not have been denied. The 1970 deed for the property named defendant and his mother as husband and wife. Pursuant to 1970 law (which changed in 1975) the erroneous “husband and wife” designation created a tenancy in common with no right of survivorship. Therefore, although defendant was not the sole owner at the time the mortgage loan was made, the mortgage was secured by his interest in the property and that interest was subject to foreclosure:

Contrary to the Supreme Court’s determination, while the defendant may not have been the sole owner of the subject property at the time of the loan, he was still able to mortgage the subject property to the extent of his interest therein, since ” [a] mortgage given by one of several parties with an interest in the mortgaged property is not invalid; it gives the mortgagee security, but only up to the interest of the mortgagor'” … . “[T]here is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other” … . John T. Walsh Enters., LLC v Jordan, 2017 NY Slip Op 05813, 2nd Dept 7-25-17

REAL PROPERTY (DEEDS, ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)/FORECLOSURE (DEEDS,  ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)/TENANCY IN COMMON (DEEDS, ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)

DEVELOPMENT RIGHTS CONSTITUTE REAL PROPERTY WHICH CAN BE SOLD PURSUANT TO RPAPL 1602 2ND DEPT.

The Second Department, in a full-fledged opinion by Justice Connolly, in a matter of first impression, determined that development rights constituted real property within the meaning of Real Property Actions and Proceedings Law (RPAPL) 1602, but that the sale of the development rights in this case would not be “expedient” and therefore would violate RPAPL 1602. Here three of four siblings wanted to sell the development rights to the family farm in order to preserve it as a farm. One of the siblings, the defendant, objected to the idea. Overruling Supreme Court, the Second Department held that development rights constitute real property which can be sold pursuant to RPAPL 1602. But, because there was no purchaser for the development rights, the plaintiffs had not demonstrated the sale was “expedient” within the meaning of the statute:

… [D]evelopment rights, as that term was understood by the parties to this action, are clearly “real property, or a part thereof” (RPAPL 1602). Indeed, the Court of Appeals has held that development rights constitute interests within the metaphorical “bundle of rights” that comprise fee interests in real property (see Seawall Assocs. v City of New York, 74 NY2d 92, 109 …). In Seawall, the Court of Appeals observed that “[t]here can be no question that the development rights which have been totally abrogated by the local law are, standing alone, valuable components of the bundle of rights’ making up their fee interests,” …  Applying the bundle-of-rights metaphor to the case at bar, by seeking court approval to convey away the right to build as many homes as are allowed by zoning and planning regulations, the plaintiffs are seeking to convey those portions of the bundle of rights comprising the maximum development capacity of the property. Moreover, in drafting RPAPL 1602, the Legislature gave courts the authority to compel the mortgage, lease, or sale of “real property, or a part thereof” … , without placing any limitations on which “parts” of the bundle of rights comprising real property are subject to the statute. “Ordinarily, where the Legislature in enacting a statute utilized general terms, and did not, either expressly or by implication, limit their operation, the court will not impose any limitation” … . Hahn v Hagar, 2017 NY Slip Op 05710, 2nd Dept 7-19-17

REAL PROPERTY (DEVELOPMENT RIGHTS CONSTITUTE REAL PROPERTY WHICH CAN BE SOLD PURSUANT TO RPAPL 1602 2ND DEPT)/DEVELOPMENT RIGHTS (REAL PROPERTY, DEVELOPMENT RIGHTS CONSTITUTE REAL PROPERTY WHICH CAN BE SOLD PURSUANT TO RPAPL 1602 2ND DEPT)

,

REAL PROPERTY TRANSFER BY RELIGIOUS CORPORATION INVALID, CORPORATION DID NOT SEEK COURT APPROVAL FOR THE TRANSFER 2ND DEPT.

The Second Department determined summary judgment was properly awarded to plaintiff in this action to quiet title. Plaintiff religious corporation was required to get the court’s permission before selling property to defendant. Because plaintiff did not seek leave of court, its transfer of the property to defendant was invalid:

Religious Corporations Law § 12(1) provides that in order to sell any of its real property, a religious corporation must apply for, and obtain, leave of court pursuant to Not-For-Profit Corporation Law § 511 … . “The purpose of this requirement is to protect the members of the religious corporation, the real parties in interest, from loss through unwise bargains and from perversion of the use of the property” … . Here, the plaintiff, a religious corporation subject to the requirements of Religious Corporations Law § 12(1), established, prima facie, that its conveyance of the subject property to the defendants was invalid because it was made without leave of court … . Heights v Schwarz, 2017 NY Slip Op 05707, 2nd Dept 7-19-17

CORPORATION LAW (RELIGIOUS CORPORATIONS, REAL PROPERTY TRANSFER, REAL PROPERTY TRANSFER BY RELIGIOUS CORPORATION INVALID, CORPORATION DID NOT SEEK COURT APPROVAL FOR THE TRANSFER 2ND DEPT)/REAL PROPERTY (RELIGIOUS CORPORATIONS, REAL PROPERTY TRANSFER, REAL PROPERTY TRANSFER BY RELIGIOUS CORPORATION INVALID, CORPORATION DID NOT SEEK COURT APPROVAL FOR THE TRANSFER 2ND DEPT)/RELIGIOUS CORPORATIONS (REAL PROPERTY TRANSFER BY RELIGIOUS CORPORATION INVALID, CORPORATION DID NOT SEEK COURT APPROVAL FOR THE TRANSFER 2ND DEPT)/NOT FOR PROFIT CORPORATION LAW (RELIGIOUS CORPORATIONS, REAL PROPERTY TRANSFER, REAL PROPERTY TRANSFER BY RELIGIOUS CORPORATION INVALID, CORPORATION DID NOT SEEK COURT APPROVAL FOR THE TRANSFER 2ND DEPT)

QUESTIONS OF FACT ABOUT EASEMENT BY NECESSITY CLAIM AND LOCATION OF EASEMENT APPURTENANT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT.

The Third Department, reversing Supreme Court, determined defendants had raised questions of fact about the location of plaintiff’s (Finster’s) easement over defendants’ land. Summary judgment should not have been granted to Finster:

… Multiple longtime neighborhood residents provided sworn statements claiming that no roadway ever existed at the location of the disputed driveway prior to Finster’s ownership of 70 Middle Road. Further, one neighbor contradicted [pllaintiff’s] claim that the quarry property can only be accessed by the disputed driveway by claiming that it had historically been accessed by a different road. Hence, defendants’ submissions raised material issues of fact as to whether Finster’s easement appurtenant included the disputed driveway or, otherwise, whether the quarry parcel was landlocked, proof of which is essential to plaintiffs’ easement by necessity claim … . Finster Inc. v Albin, 2017 NY Slip Op 05651, 3rd Dept 7-13-17

REAL PROPERTY (QUESTIONS OF FACT ABOUT EASEMENT BY NECESSITY CLAIM AND LOCATION OF EASEMENT APPURTENANT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/EASEMENTS  (QUESTIONS OF FACT ABOUT EASEMENT BY NECESSITY CLAIM AND LOCATION OF EASEMENT APPURTENANT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)

, ,

CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED.

The Second Department, in affirming the dismissal of the causes of action, explained when a resident can bring a private action to enforce a zoning ordinance and restrictive covenants in another’s deed:

​

The Supreme Court also properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(3) to dismiss the plaintiff’s third cause of action, which was to enjoin alleged violations of the Code of the Town of Islip and restrictive covenants and to recover damages incidental to the alleged violations, as the plaintiff lacks standing to bring such a cause of action. Generally, to maintain a private action at common law to enjoin a zoning violation, a plaintiff must establish that he or she has standing to do so by demonstrating that special damages were sustained due to the defendant’s activities. To establish special damages, it is necessary to show that there is some depreciation in the value of the premises as real property arising from the forbidden use… . The plaintiff here failed to show that there was a depreciation of the character of the immediate neighborhood, or a depreciation in the value of her premises.

Furthermore, as stated previously, the plaintiff lacks standing to enforce restrictive covenants regarding the defendants’ property. The language in the deed from the original grantor indicates that the covenants were not imposed for the benefit of the owner of neighboring land. Therefore, the plaintiff may not enforce the covenants as a third-party beneficiary … .. Moreover, these covenants were not part of a common development scheme created for the benefit of all property owners within the subject development … . Wheeler v Del Duca, 2017 NY Slip Op 05116, 2nd Dept 6-21-17

 

ZONING (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/REAL PROPERTY (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/RESTRICTIVE COVENANTS (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/DEEDS (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)

,

SOLAR AND WIND EASEMENTS, WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE.

The Fourth Department determined solar and wind easements granted subsequent to the mortgages are subject to foreclosure:

​

… [D]efendant’s easements constitute interests in the realty that are subject to foreclosure by plaintiff. A mortgage creates a lien upon the property to the extent of the mortgagor’s own interest or title at the time of the giving of the mortgage. Thus, “[t]he effect of the foreclosure [judgment and sale] . . . is to vest in the purchaser the entire interest and estate of mortgagor and mortgagee as it existed at the date of the mortgage, and unaffected by the subsequent [e]ncumbrances and conveyances of the mortgagor” … . Given that defendant’s easements were not granted and recorded until June 2015, after the subject mortgages were given and recorded in August 2012 and April 2014, respectively, the mortgagors’ interests at the time of the giving of the mortgages included the use or control of the airspace above their properties. Thus, the mortgages are prior in time and right to defendant’s easements … . Bank of Akron v Spring Cr. Athletic Club, Inc., 2017 NY Slip Op 05008, 4th Dept 6-16-17

​

REAL PROPERTY (FORECLOSURE, SOLAR AND WIND EASEMENTS, SOLAR AND WIND EASEMENTS, WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE)/FORECLOSURE (SOLAR AND WIND EASEMENTS , WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE)/EASEMENTS (FORECLOSURE, SOLAR AND WIND EASEMENTS , WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE)/SOLAR EASEMENTS (FORECLOSURE, SOLAR AND WIND EASEMENTS , WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE)/WIND EASEMENTS (FORECLOSURE, SOLAR AND WIND EASEMENTS , WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE)

TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT.

The Fourth Department determined plaintiff had demonstrated title by adverse possession to a strip of land on her side of a chain link fence which was there when she purchased the property in 1986. The court rejected the argument that the action was time-barred because the ten-year adverse-possession period ended in 1996. Title vested in plaintiff in 1996 without the need for a court action. The court also rejected the argument that plaintiff was presented with a survey map upon purchase which showed the fence and the actual property line, and therefore plaintiff knew she didn’t own the land. Even if plaintiff was aware of the encroachment, the court reasoned, the fact that she cultivated the land for the requisite period of time controlled:

​

Defendant contends that plaintiff was required to commence a judicial action after the requisite 10-year period passed, i.e., sooner than 2014, in order to gain title to the disputed land. We reject that contention on the ground that “RPAPL 501 (2), as amended, recognizes that title, not the right to commence an action to determine title, is obtained upon the expiration of the limitations period” (Franza, 73 AD3d at 47 [additional emphasis added]). As we explained in Franza, ” [A]dverse possession for the requisite period of time not only cuts off the true owner’s remedies but also divests [the owner] of his [or her] estate’ . . . Thus, at the expiration of the statutory period, legal title to the land is transferred from the owner to the adverse possessor . . . Title to property may be obtained by adverse possession alone, and [t]itle by adverse possession is as strong as one obtained by grant’ ” (id.). Contrary to defendant’s contention, plaintiff had no legal obligation to take any legal action to obtain title to the disputed land after 1996 inasmuch as title vested with her that year upon the expiration of the 10-year period. * * *

​

Plaintiff testified that she received the survey after she closed, but that she did not know how to read the survey. When she purchased her home in 1986 and from that time forward, she believed that she owned the strip of land in dispute. Even if plaintiff had read the survey and was aware of the encroachment, the court properly determined that such would not defeat her claim of right. “Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors. The fact that adverse possession will defeat a [survey] even if the adverse possessor has knowledge of the [survey] is not new” … . In addition, plaintiff established that the chain-link fence was in place from at least 1986, and that she cultivated and maintained the lawn on her side of the fence from that time thereafter … . Slacer v Kearney, 2017 NY Slip Op 04589, 4th Dept 6-9-17

 

REAL PROPERTY (TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT)/ADVERSE POSSESSION  (TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT)/SURVEYS (ADVERSE POSSESSION, TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT)

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy