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NON-USE ALONE DOES NOT AMOUNT TO ABANDONMENT OF AN EASEMENT, RPAPL 1951 CANNOT BE USED TO RETROACTIVELY EXTINGUISH AN EASEMENT ON SOMEONE ELSE’S LAND.

The Third Department, reversing Supreme Court, determined plaintiffs were not entitled to amend their pleadings to conform to the proof after a nonjury trial in this adverse possession proceeding. Plaintiffs sought adverse possession of portions “paper streets” on both plaintiffs’ and defendants’ (Hart’s) land arguing that any easement had been abandoned and should be extinguished pursuant to Real Property Actions and Proceedings Law (RPAPL) 1951. The court explained that non-use alone does not constitute abandonment and RPAPL 1951 cannot be used to retroactively extinguish an easement on someone else’s land:

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Because nonuse, as a matter of law, does not establish intent to abandon, and given that plaintiffs did not allege that the proof showed any other acts that would be cognizable in satisfying the requirement of “unequivocal [acts] . . . clearly demonstrat[ing] the owner[s’] intention to permanently relinquish all rights to [an] easement” … , plaintiffs’ proposed amendment regarding abandonment of any easement is palpably insufficient on its face … . …

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As the Court of Appeals has made clear, the Legislature intended for RPAPL 1951 (2) to make “available to owners of parcels burdened with outmoded restrictions an economical and efficient means of getting rid of them” … . As the Legislature intended for the provision to allow landowners to seek the extinguishment of restrictions on their property, the provision does not permit plaintiffs to extinguish an easement on Hart’s property. Moreover, the relevant inquiry for RPAPL 1951 focuses on “the time the enforceability of the restriction is brought in question” … . That time frame is a plain indication that any act by a court in extinguishing a restriction would not apply to a time prior to when the enforceability of the restriction was challenged. Therefore, as RPAPL 1951 (2) does not permit plaintiffs to retroactively extinguish an easement on Hart’s property, it is inapplicable to plaintiffs’ adverse possession claim. Ferguson v Hart, 2017 NY Slip Op 04523, 3rd Dept 6-8-17

 

REAL PROPERTY (ADVERSE POSSESSION, EASEMENTS, NON-USE ALONE DOES NOT AMOUNT TO ABANDONMENT OF AN EASEMENT, RPAPL 1951 CANNOT BE USED TO RETROACTIVELY EXTINGUISH AN EASEMENT ON SOMEONE ELSE’S LAND)/ADVERSE POSSESSION (EASEMENTS, NON-USE ALONE DOES NOT AMOUNT TO ABANDONMENT OF AN EASEMENT, RPAPL 1951 CANNOT BE USED TO RETROACTIVELY EXTINGUISH AN EASEMENT ON SOMEONE ELSE’S LAND)ABANDONMENT (EASEMENTS,  NON-USE ALONE DOES NOT AMOUNT TO ABANDONMENT OF AN EASEMENT, RPAPL 1951 CANNOT BE USED TO RETROACTIVELY EXTINGUISH AN EASEMENT ON SOMEONE ELSE’S LAND)/EXTINGUISHMENT (EASEMENTS, RPAPL 1951, ADVERSE POSSESSION, NON-USE ALONE DOES NOT AMOUNT TO ABANDONMENT OF AN EASEMENT, RPAPL 1951 CANNOT BE USED TO RETROACTIVELY EXTINGUISH AN EASEMENT ON SOMEONE ELSE’S LAND)

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PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT.

The Second Department determined plaintiffs had received title to real property free of any encumbrances. Plaintiffs had purchased the property from Edwin Ramsey. Ramsey and his wife. Bertha, had owned the property as tenants by the entirety. Upon the death of Bertha, Edwin owned the property free and clear. Defendant’s argument that the Ramsey’s had agreed to hold separate interests in the property was based upon hearsay, which, standing alone, will not defeat a summary judgment motion:

A disposition of real property to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common” (EPTL 6-2.2[b]…). “[A] surviving tenant in a tenancy by the entirety receives the fee interest in its entirety, free and clear of any debts, claims, liens or other encumbrances as against the deceased spouse” … . Here, the plaintiffs demonstrated, prima facie, that they were entitled to summary judgment. Their evidence, including Edwin and Bertha’s 1968 marriage certificate and the 1972 deed, showed that Edwin and Bertha had a tenancy by the entirety in the property, as they were married at the time of the 1972 deed conveying the property to them and the deed did not “expressly declare[ ] [there] to be a joint tenancy or a tenancy in common” (EPTL 6-2.2[b]). Thus, when Bertha died in 2012, Edwin, as the surviving spouse, “receive[d] the fee interest in its entirety, free and clear of any debts, claims, liens or other encumbrances as against” Bertha … . Edwin was thereafter free to convey the property to the plaintiffs, which he did. Cormack v Burks, 2017 NY Slip Op 04252, 2nd Dept 5-31-17

TRUSTS AND ESTATES (PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/REAL PROPERTY (TENANTS BY THE ENTIRETY, PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/TENANTS BY THE ENTIRETY (TRUSTS AND ESTATES, PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/CIVIL PROCEDURE (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/HEARSAY (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/EVIDENCE (HEARSAY, SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)

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ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE. 

The Third Department determined defendant’s oral offer to sell to plaintiff her shares in a family corporation (SEI) formed solely to hold one piece of property (Beach Cove) as its single asset was subject to the statute of frauds (and therefore unenforceable). The court further found that certain actions, like opening a bank account, did not amount to part performance sufficient to overcome the writing requirement of the statute of frauds:

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SEI was a single-asset corporation — that single asset being its ownership of Beach Cove — and, inasmuch as the alleged oral agreement involved the sale of plaintiff’s shares of stock in a corporation whose only asset was an interest in real property, the statute of frauds indeed applied here … . As the alleged oral agreement was not reduced to writing, plaintiff could avoid application of the statute of frauds only if her conduct fell within the part performance exception. In this regard, while the actions upon which plaintiff relies — i.e., opening a bank account in anticipation of a wire transfer of funds from defendant, retrieving her SEI stock certificates to relinquish to defendant, hiring an attorney to coordinate with defendant and/or reduce the alleged oral agreement to writing, timely removing her personal possessions from Beach Cove and promptly vacating the premises in accordance with defendant’s alleged wishes — are consistent with plaintiff’s assertion that she and defendant had a deal to sell plaintiff’s shares in SEI to defendant for $900,000, such actions are not unequivocally referable to — or unintelligible without reference to — the alleged oral agreement, nor so substantial in quality to irremediably alter the situation. Wells v Hodgkins, 2017 NY Slip Op 03824, 3rd Dept 5-11-17

CONTRACT LAW (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)/REAL PROPERTY (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)/STATUTE OF FRAUDS (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)/CORPORATION LAW  (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)

PETITIONER, WHO WAS GRANTED A LICENSE TO ENTER RESPONDENT’S PROPERTY UNDER RPAPL 881 TO MAKE REPAIRS ON PETITIONER’S PROPERTY (OTHERWISE NOT ACCESSIBLE), WAS REQUIRED TO PAY RESPONDENT A LICENSE FEE.

The First Department determined petitioner was entitled to a license to enter another’s property to make repairs on petitioner’s property (which was otherwise not accessible) but the respondent property owner was entitled to a license fee:

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RPAPL 881 provides: “When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.”

“Although the determination of whether to award a license fee is discretionary, in that RPAPL 881 provides that a license shall be granted by the court in an appropriate case upon such terms as justice requires,’ the grant of licenses pursuant to RPAPL 881 often warrants the award of contemporaneous license fees”… . This is because ” the respondent to an 881 petition has not sought out the intrusion and does not derive any benefit from it . . . . Equity requires that the owner compelled to grant access should not have to bear any costs resulting from the access'” … . Matter of Van Dorn Holdings, LLC v 152 W. 58th Owners Corp., 2017 NY Slip Op 02905, 1st Dept 4-13-17

 

REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (PETITIONER, WHO WAS GRANTED A LICENSE TO ENTER RESPONDENT’S PROPERTY UNDER RPAPL 881 TO MAKE REPAIRS ON PETITIONER’S PROPERTY (OTHERWISE NOT ACCESSIBLE), WAS REQUIRED TO PAY RESPONDENT A LICENSE FEE)/LICENSE FEE (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, PETITIONER, WHO WAS GRANTED A LICENSE TO ENTER RESPONDENT’S PROPERTY UNDER RPAPL 881 TO MAKE REPAIRS ON PETITIONER’S PROPERTY (OTHERWISE NOT ACCESSIBLE), WAS REQUIRED TO PAY RESPONDENT A LICENSE FEE)

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REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE.

The Second Department, reversing Supreme Court, determined plaintiff should have been granted summary judgment in the Real Property Actions and Proceedings Law (RPAPL) 1501 action to set aside the deed and mortgages which were the bases for foreclosure by defendant Wells Fargo bank. Plaintiff demonstrated the initial deed was a forgery. Wells Fargo argued the proper procedure required that plaintiff move to vacate the judgment of foreclosure:

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RPAPL 1501(1) provides that any person who “claims an estate or interest in real property” may “maintain an action against any other person . . . to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, . . . the defendant might make.” A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid … .

Contrary to Wells Fargo’s contention, the plaintiff, who, like the decedent, was not a defendant in the foreclosure action… , properly commenced the instant action … .

Wells Fargo otherwise failed to carry its prima facie burden on its motion by demonstrating the absence of a triable issue of fact as to whether the subject deed was valid … . Accordingly, the Supreme Court erred in granting Wells Fargo’s motion … . Deramo v Laffey, 2017 NY Slip Op 02772, 2nd Dept 4-12-17

REAL PROPERTY (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE)/FORECLOSURE (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE)/DEEDS (FORGED, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE)

SPECIFIC PERFORMANCE OF A RECORDED OPTION TO BUY LAND WAS PROPERLY ORDERED DESPITE THE INABILITY TO IMMEDIATELY RECORD THE DEED UPON PURCHASE, TRANSFER OF THE DEED, NOT RECORDING OF THE DEED, WAS ALL THAT WAS REQUIRED BY THE OPTION AGREEMENT.

The Third Department, over a two-justice dissent, determined a recorded option agreement allowing plaintiff to buy back a portion of the parcel of land sold by the plaintiff was enforceable against subsequent purchasers of the parcel, even though the deed to the option property could not be recorded at the time the option was exercised (subdivision approval would be necessary to record the deed). The court held that because only transfer of the deed, not the recording of the deed, was required under the option agreement, the agreement could be enforced by an action for specific performance (which requires that the buyer be ready, willing and able to purchase the property when the option is exercised):

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… “[N]othing within the four corners of the option agreement requires plaintiff to obtain subdivision approval prior to exercising its option with respect to the 3.5-acre parcel, nor does the option agreement provide that the failure to obtain such approval renders the underlying agreement null and void” … . Further, as Supreme Court correctly noted, Real Property Law § 291 does not compel plaintiff to actually record the reconveyance deed for the subject parcel, as “recording is not required in order to transfer title to real property” (… see Real Property Law § 291). Rather, title to property vests upon the execution and delivery of the deed (see Real Property Law § 244…), and the fact that the deed may not be recorded until a later date — or at all — does not affect the validity of the conveyance … . While it is true that, generally speaking, prudence would suggest that a grantee record his or her deed, there is no requirement that he or she do so. More to the point, we do not interpret the option agreement before us as requiring plaintiff to record the deed obtained subsequent to exercising its rights relative to the 3.5-acre parcel — only a provision that, if it elects to do so, it be at its expense.  Tomhannock, LLC v Roustabout Resources, LLC, 2017 NY Slip Op 02712, 3rd Dept 4-6-17

REAL PROPERTY (SPECIFIC PERFORMANCE OF A RECORDED OPTION TO BUY LAND WAS PROPERLY ORDERED DESPITE THE INABILITY TO IMMEDIATELY RECORD THE DEED UPON PURCHASE, TRANSFER OF THE DEED, NOT RECORDING OF THE DEED, WAS ALL THAT WAS REQUIRED BY THE OPTION AGREEMENT)/SPECIFIC PERFORMANCE (REAL PROPERTY, SPECIFIC PERFORMANCE OF A RECORDED OPTION TO BUY LAND WAS PROPERLY ORDERED DESPITE THE INABILITY TO IMMEDIATELY RECORD THE DEED UPON PURCHASE, TRANSFER OF THE DEED, NOT RECORDING OF THE DEED, WAS ALL THAT WAS REQUIRED BY THE OPTION AGREEMENT)/DEEDS  (SPECIFIC PERFORMANCE OF A RECORDED OPTION TO BUY LAND WAS PROPERLY ORDERED DESPITE THE INABILITY TO IMMEDIATELY RECORD THE DEED UPON PURCHASE, TRANSFER OF THE DEED, NOT RECORDING OF THE DEED, WAS ALL THAT WAS REQUIRED BY THE OPTION AGREEMENT)/OPTION AGREEMENTS (REAL PROPERTY, SPECIFIC PERFORMANCE OF A RECORDED OPTION TO BUY LAND WAS PROPERLY ORDERED DESPITE THE INABILITY TO IMMEDIATELY RECORD THE DEED UPON PURCHASE, TRANSFER OF THE DEED, NOT RECORDING OF THE DEED, WAS ALL THAT WAS REQUIRED BY THE OPTION AGREEMENT)

MINERAL RIGHTS INCLUDE THE RIGHT TO REMOVE SAND AND GRAVEL.

The Third Department explained the meaning of mineral rights (as opposed to surface rights) as that term appeared in a 1917 deed. The court held that the term encompassed all inorganic material, including sand and gravel:

Supreme Court correctly determined as a matter of law that those mineral rights that plaintiffs owned and that were originally derived from a 1917 deed from a grantor, who was the common grantor of plaintiffs’ mineral rights and at least certain of [defendant’s]  surface rights, included the right to extract and remove sand and gravel. The Court of Appeals has directly passed on the meaning of the term “minerals” as used in a conveyance and concluded that the term “will include all inorganic substances [that] can be taken from the land” where the term’s meaning is not restricted “b[y] qualifying words, or language, evidencing that the parties contemplated something less general than all substances legally cognizable as minerals” … . Thus, unless qualifying and restrictive language related to the term minerals renders the term ambiguous in any particular conveyance, the meaning of minerals is determinable as a matter of law and is not subject to extrinsic proof … . The 1917 deed conveyed a minerals estate that included “all . . . minerals in, under and upon” the specified properties together with the right to “dig, mine and remove” those minerals from the land free from any liability for damage. Accordingly, given that the language in the 1917 deed does not qualify or restrict the term minerals, the Court of Appeals’ interpretation controls. Therefore, as sand and gravel are “inorganic substances [that] can be taken from the land,” they fall within the mineral rights conveyed by the 1917 deed … . Champlain Gas & Oil, LLC v People of The State of New York, 2017 NY Slip Op 01610, 3rd Dept 3-2-17

REAL PROPERTY (MINERAL RIGHTS INCLUDE THE RIGHT TO REMOVE SAND AND GRAVEL)/MINERAL RIGHTS (MINERAL RIGHTS INCLUDE THE RIGHT TO REMOVE SAND AND GRAVEL)/SAND AND GRAVEL (REAL PROPERTY, (MINERAL RIGHTS INCLUDE THE RIGHT TO REMOVE SAND AND GRAVEL)/MINERAL RIGHTS (MINERAL RIGHTS INCLUDE THE RIGHT TO REMOVE SAND AND GRAVEL)

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TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD.

The Third Department determined the town had the right, pursuant to the Highway Law, to a pubic road easement three rods wide, even though the easement extended past the paved portion and included a plaintiffs’ fence:

After a roadway is established as a highway by use, Highway Law § 189 plainly permits a town to maintain and improve it in furtherance of the public’s right of travel, to the width of “at least three rods.” Stated differently, so long as the use at issue relates directly or indirectly to the public’s right of travel, the use of the highway may be extended past the paved portion of the road to a width of at least three rods. In our view, this interpretation of the statute is consistent with case law holding that the extent of the easement is defined by its actual use … . Inasmuch as the Town’s plowing and widening of Fox Hollow Road are uses that are “necessary to preserve the public’s right of passage,” they define the Town’s easement pursuant to Highway Law § 189 … . Further, it is undisputed that plaintiffs’ fence and the widening of the roadway were well within the three-rod width that defendants are statutorily authorized to open. Hoffman v Town of Shandaken, 2017 NY Slip Op 01430, 3rd Dept 2-23-17

MUNICIPAL LAW (TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)/HIGHWAYS AN ROADS (TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)/EASEMENTS (MUNICIPAL LAW, PUBLIC ROADS, TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)

A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY.

The Second Department, in a decision too complex to fairly summarize here, determined a party’s (Myrtle’s) failure to execute a recorded memorandum referencing a purchase and sale agreement and assignment resulted in the failure to give priority to a claim to the property by a another party to the agreement (All Year):

Real Property Law § 294(2) provides, inter alia, “[i]n lieu of the recording of an executory contract, there may be recorded a memorandum thereof, executed by the parties.” Here, in lieu of recording the purchase and sale agreement and assignment thereof, All Year and Cumberland executed and recorded a memorandum referencing the purchase and sale agreement and the assignment. However, Myrtle, which was a party to both the purchase and sale agreement and the assignment, did not execute the memorandum. As Myrtle did not execute the memorandum, it was improperly recorded in lieu of the purchase and sale agreement and assignment, and its recording did not serve to give All Year’s claim to the property priority over Brookland’s claim. Vanderbilt Brookland, LLC v Vanderbilt Myrtle, Inc., 2017 NY Slip Op 01402, 2nd Dept 2-22-17

REAL PROPERTY LAW (A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)/RECORDING (REAL PROPERTY LAW, PURCHASE AND SALE AGREEMENT, A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)/PRIORTY (REAL PROPERTY, RECORDING, A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)

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HEATING AGREEMENT WAS A COVENANT WHICH RUNS WITH THE LAND, ORAL WAIVER MAY BE VALID DESPITE WRITING REQUIREMENT IN THE COVENANT.

The First Department determined there was a question of fact whether plaintiff building owner waived a heating agreement, which was a covenant running with the land. The covenant obligated defendant to provide heat to plaintiff’s building as long as both buildings existed. The fact that the covenant required any waiver to be in writing was not dispositive. Oral waivers may be valid:

The motion court correctly concluded that the obligation undertaken by the previous owners of a building, currently owned by defendant, to provide steam heat to adjacent buildings, including one owned by plaintiff, as reflected in a written agreement between the previous owners of defendant’s building and the previous owners of the adjacent buildings (Heating Agreement), which was recorded in the Office of the City Register of the City of New York, is a covenant running with the land. Accordingly, it is binding on defendant so long as both buildings are in existence … . * * *

In this case, the agreement provides that “in the event the owner of any of said parcels [including plaintiff] shall elect to terminate and cancel this agreement with respect to said parcel, which election shall be made by written notice to the owner of Parcel I [currently, defendant], then this agreement shall end and terminate with respect to any such parcel as of . . . the date when notice of election to cancel is given.”

Plaintiff’s contention that this language precludes its waiver of the covenant by any means other than a writing is misplaced. “[A] contracting party may orally waive enforcement of a contract term notwithstanding a provision to the contrary in the agreement. Such waiver may be evinced by words or conduct, including partial performance” … . Here, the record reflects that a representative of plaintiff orally advised a member of defendant’s coop board that plaintiff would install its own boiler to provide heat to its own building independently. Condor Funding, LLC v 176 Broadway Owners Corp., 2017 NY Slip Op 00719, 1st Dept 2-2-17

 

CONTRACT LAW (COVENANT RUNNING WITH THE LAND, HEATING AGREEMENT WAS A COVENANT WHICH RUNS WITH THE LAND, ORAL WAIVER MAY BE VALID DESPITE WRITING REQUIREMENT IN THE COVENANT)/CONTRACT LAW (WAIVER, HEATING AGREEMENT WAS A COVENANT WHICH RUNS WITH THE LAND, ORAL WAIVER MAY BE VALID DESPITE WRITING REQUIREMENT IN THE COVENANT)/REAL PROPERTY LAW (COVENANT RUNNING WITH THE LAND, HEATING AGREEMENT WAS A COVENANT WHICH RUNS WITH THE LAND, ORAL WAIVER MAY BE VALID DESPITE WRITING REQUIREMENT IN THE COVENANT)/COVENANT RUNNING WITH THE LAND (HEATING AGREEMENT WAS A COVENANT WHICH RUNS WITH THE LAND, ORAL WAIVER MAY BE VALID DESPITE WRITING REQUIREMENT IN THE COVENANT)

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