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RIGHT TO PARTITION IS NOT ABSOLUTE AND IS SUBJECT TO THE EQUITIES BETWEEN THE PARTIES.

The Second Department determined Supreme Court should not have granted plaintiff summary judgment in a partition action without holding a hearing. The right to partition is not absolute and the remedy is subject to the equities between the parties:

“A person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners (RPAPL 901[1]). The right to partition is not absolute, however, and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties” … . Here, the Supreme Court implicitly acknowledged the above when it stated in its … order that the parties were directed to appear for a conference “for purposes of finding a date for a trial of the issue of existence of equitable defenses to plaintiff's request for partition.” Guo v Guo, 2016 NY Slip Op 01806, 2nd Dept 3-16-16

REAL PROPERTY (RIGHT TO PARTITION IS NOT ABSOLUTE AND IS SUBJECT TO THE EQUITIES BETWEEN THE PARTIES)/PARTITION (REAL PROPERTY, RIGHT TO PARTITION IS NOT ABSOLUTE AND IS SUBJECT TO THE EQUITIES BETWEEN THE PARTIES)

USE OF PLAINTIFF’S LAND WAS PERMISSIVE, NOT HOSTILE; EASEMENT BY PRESCRIPTION WAS NOT CREATED.

Affirming the judgment pursuant to Real Property Actions and Proceedings Law (RPAPL) article 15, the Second Department determined plaintiff (Colin Realty) demonstrated the use of its land by neighboring property owners over the years was permissive, not hostile. Therefore no easement by prescription had been created and plaintiff could properly prohibit defendants’ use of the land:

“An easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period” … . In general, “where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive” … . This presumption, however, does not arise “when the parties’ relationship was one of neighborly cooperation or accommodation” … . Similarly, the presumption of hostility is inapplicable when the use by the claimant is not “exclusive” … . In this regard, ” exclusivity’ is not established where [a claimant’s] use is in connection with the use of the owner and the general public” … .

Here, while … it appears undisputed that the defendants’ traversing of Colin Realty’s lot was open, notorious, and continuous for the prescriptive period, the court properly determined that the presumption of hostility did not arise. Fred Colin, the manager of Colin Realty, testified that he permitted such use to [defendant] Fradler and the public at large as a matter of willing accord and neighborly accommodation. He further explained how he had, over the years, protected Colin Realty’s ownership interest when others had abused the permission he afforded. Colin Realty Co., LLC v Manhasset Pizza, LLC, 2016 NY Slip Op 01633, 2nd Dept 3-9-16

REAL PROPERTY (EASEMENT BY PRESCRIPTION NOT CREATED, USE WAS PERMISSIVE NOT HOSTILE)/EASEMENTS (EASEMENT BY PRESCRIPTION NOT CREATED, USE WAS PERMISSIVE NOT HOSTILE)

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ACTION SEEKING RESCISSION OF A CONSERVATION EASEMENT RESTRICTING DEVELOPMENT ON UPSTATE LAND WITHIN THE NEW YORK CITY WATERSHED PROPERLY DISMISSED; UNIQUE LAW RE: MODIFICATION OR EXTINGUISHMENT OF A CONSERVATION EASEMENT EXPLAINED.

In an action seeking rescission of a conservation easement which restricts development on upstate land within the watershed for New York City, the Third Department affirmed the dismissal of the complaint and explained the unique law which pertains to the modification or extinguishment of a conservation easement:

 

“Conservation easements are of a character wholly distinct from the easements traditionally recognized at common law and are excepted from many of the defenses that would defeat a common-law easement” (… see ECL 49-0305 [2], [5]…). Pursuant to ECL 49-0307 (1), “[a] conservation easement held by a not-for-profit conservation organization may only be modified or extinguished” (1) pursuant to the terms of the instrument creating the easement, (2) in a proceeding pursuant to RPAPL 1951, or (3) by eminent domain. Notably, ECL 49-0307 provides the exclusive means by which a conservation easement may be modified or extinguished (see ECL 49-0305 [2]). Argyle Farm & Props., LLC v Watershed Agric. Council of the N.Y. City Watersheds, Inc., 2016 NY Slip Op 00559, 3rd Dept 1-28-16

 

ENVIRONMENTAL LAW (CONSERVATION EASEMENT, UNIQUE LAW APPLICABLE TO MODIFICATION OR EXTINGUISHMENT)/EASEMENTS (CONSERVATION EASEMENTS, UNIQUE LAW APPLICABLE TO MODIFICATION OR EXTINGUISHMENT)/CONSERVATION EASEMENTS (MODIFICATION OR EXTINGUISHMENT)

EASEMENT APPURTENANT PASSES TO SUBSEQUENT OWNERS EVEN IF NOT SPECIFICALLY MENTIONED IN THE DEED.

The Second Department, in affirming the grant of summary judgment to plaintiffs, explained the criteria for an easement appurtenant and noted that such an easement passes to subsequent purchasers without an express provision in the subsequent deed:

 

“An easement appurtenant is created for the benefit of its owner’s use and possession of his real property” … . “An easement appurtenant occurs when the easement (1) is conveyed in writing, (2) is subscribed by the creator, and (3) burdens the servient estate for the benefit of the dominant estate” … . The easement will “pass[ ] to subsequent owners of the dominant estate through appurtenance clauses, even if it is not specifically mentioned in the deed” … . Reilly v Achitoff, 2016 NY Slip Op 00491, 2nd Dept 1-27-16

 

REAL PROPERTY (EASEMENT APPURTENANT PASSES TO SUBSEQUENT OWNERS)/EASEMENTS (EASEMENT APPURTENANT PASSES TO SUBSEQUENT OWNERS)/DEEDS (EASEMENT APPURTENANT PASSES TO SUBSEQUENT OWNERS WITHOUT MENTION IN THE DEED)

THE INSTALLATION OF LIGHT FIXTURES ON A PARTY WALL EXCEEDED ANY EASEMENT THAT MIGHT ARISE FROM THE EXISTENCE OF A PARTY WALL.

A wall separating plaintiff’s (NYCAR’s) and defendant’s property was located entirely on NYCAR’s property. Defendant installed light fixtures on the wall for commercial purposes (an outdoor eating area for defendant’s restaurant). The defendant also installed a door in the wall to act as an emergency exit for patrons of the restaurant. Defendant argued the wall was a party wall and the easement which accompanies a party wall allowed the installation of fixtures on the wall. The Third Department explained that the installation of fixtures on the wall exceeded any easement which might exist:

 

Defendant concedes that the survey that plaintiff submitted in support of its motion for summary judgment shows that the wall lies wholly on NYSARC’s property, but argues that defendant’s installation of the fixtures and utilities was nevertheless proper because it is a party wall. “‘A party wall is generally described as a wall erected between two adjoining pieces of property and used for the common advantage of both owners'” … . Party walls are often located on the boundary line between parcels, in which case the portion of the wall on each property belongs to that parcel’s owner, subject to an easement in the other building’s owner for its support … . A party wall, however, may also “belong[] entirely to one of the adjoining owners, but [be] subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements” … .

Here, defendant’s actions were beyond the scope of a party wall easement; the fixtures and utilities that defendant placed on the exposed eastern portion of the wall neither provided support to defendant’s building nor contributed in any way to the maintenance of a dividing wall between the buildings. Instead, they were installed solely for defendant’s “mere convenience or advantage” in operating its restaurant … . Stamp v 301 Franklin St. Café, Inc., 2016 NY Slip Op 00410, 3rd Dept. 1-21-16

 

REAL PROPERTY (PARTY WALL, EASEMENT EXCEEDED BY INSTALLATION OF LIGHT FIXTURES ON THE WALL)/PARTY WALL (EASEMENT EXCEEDED BY INSTALLATION OF LIGHT FIXTURES ON THE WALL)/EASEMENTS (EASEMENT ASSOCIATED WITH A PARTY WALL WAS EXCEEDED BY THE INSTALLATION OF LIGHT FIXTURES ON THE WALL)

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QUESTION OF FACT WHETHER PARTIAL PERFORMANCE TOOK ORAL AGREEMENT OUT OF THE STATUTE OF FRAUDS.

The Third Department determined a question of fact had been raised about whether an oral agreement to extend a mining lease was enforceable because partial performance took the contract out of the statute of frauds. An amendment to extend the mining lease for 20 years was never executed. However, the agreement was mentioned in a 20-year sublease which was subsequently entered:

Defendants’ statute of frauds argument is governed by General Obligations Law § 5-703, which, as relevant here, provides that an interest in real property can be created or conveyed only by a signed writing. While plaintiff concedes that a signed copy of the amendment does not exist, he contends that the statute of frauds is inapplicable, as the parties’ course of conduct constitutes partial performance of an oral contract to extend the term of the lease (see General Obligations Law § 5-703 [4]…). “[P]artial performance of an alleged oral contract will be deemed sufficient to take such contract out of the [s]tatute of [f]rauds only if it can be demonstrated that the acts constituting partial performance are ‘unequivocally referable’ to said contract” … .

Here, plaintiff raised triable issues of fact as to whether the partial-performance exception to the statute of frauds applies. Evidence of such performance can be found in the parties’ mutual decision to execute the 20-year sublease agreement, which explicitly referred to the amendment and acknowledged that plaintiff and [defendant] were parties to it. Indeed, if the parties did not have an understanding that the mining lease was to be extended to 20 years, then [defendant sublessee’s] willingness to enter into a 20-year sublease with plaintiff — despite the fact that plaintiff had only a five-year lease with [defendant] and [defendant’s] express consent to the creation of these incongruous interests in his property — would appear to be “‘unintelligible or at least extraordinary,’ explainable only with reference to the oral agreement” …. . Bowers v Hurley, 2015 NY Slip Op 08884, 3rd Dept 12-3-15

REAL PROPERTY (PARTIAL PERFORMANCE OF ORAL AGREEMENT, STATUTE OF FRAUDS)/CONTRACT LAW (PARTIAL PERFORMANCE OF ORAL AGREEMENT, STATUTE OF FRAUDS)/STATUTE OF FRAUDS (PARTIAL PERFORMANCE OF ORAL AGREEMENT)

Six-Year Statute of Limitations for Reformation of Deed Exceeded, No Evidence the Exception to the Statute Applied

The Second Department determined the action to reform a deed (correction of alleged scrivener’s error) was time-barred. The six-year statute was exceeded and there was no proof the exception to the six-year statute applied:

A cause of action seeking reformation of an instrument on the ground of mistake, including an alleged scrivener’s error, is governed by the six-year statute of limitations pursuant to CPLR 213(6), which begins to run on the date the mistake was made … . However, “a well-recognized exception exists as to one who is in possession of real property under an instrument of title,’ whereby the statute of limitations never begins to run against his [or her] right to reform that instrument until he [or she] has notice of a claim adverse to his [or hers] under the instrument, or until his [or her] possession is otherwise disturbed'” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the alleged scrivener’s error occurred on August 8, 2005, and that the plaintiff did not commence this action until February 2013, more than six years after the alleged mistake … . In opposition, the plaintiff failed to raise a question of fact as to the applicability of the exception to the statute of limitations based on his alleged “possession of real property under an instrument of title” … . The plaintiff failed to submit any evidence with respect to whether or when he was in possession of the subject property. Lopez v Lopez, 2015 NY Slip Op 08389, 2nd Dept 11-18-15

 

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Constructive Trust Properly Imposed on Real Property, Criteria Explained

The Second Department determined the defendant (Chen) was entitled to impose a constructive trust on real property for which she contributed money. The court explained the criteria:

“Generally, a constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'” … . “The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment” … . While these factors are useful in many cases, the constructive trust doctrine is not rigidly limited … . Thus, although the elements of a constructive trust must be proved by clear and convincing evidence …, “[t]he constructive trust doctrine is given broad scope to respond to all human implications of a transaction in order to give expression to the conscience of equity and to satisfy the demands of justice” … .

Here, the Supreme Court properly awarded judgment in favor of the defendant Al Ming Chen on her counterclaim to impose a constructive trust on the subject real property. Contrary to the plaintiff’s contention, Chen offered evidence satisfying the elements generally needed for the imposition of a constructive trust. The plaintiff’s contention that Chen never had any interest in the subject property, and therefore is not entitled to the imposition of a constructive trust, is without merit. Chen showed that she contributed money for the purchase of the subject property and for paying down the mortgage in reliance on an implied promise by the plaintiff that she shared an interest in the property … . Moreover, Chen demonstrated that a constructive trust is necessary in this case to satisfy the demands of justice … . Liu v Chen, 2015 NY Slip Op 08152, 2nd Dept 11-12-15

 

Pre-2008 Criteria for Adverse Possession Explained

Applying the law of adverse possession as it was in 2002 (the legislature changed the law in 2008), the Second Department determined plaintiffs had demonstrated they acquired land enclosed by a fence by adverse possession:

In 2008, the Legislature enacted changes to the adverse possession statutes … . Here, however, since title to the disputed property allegedly vested in the plaintiffs by adverse possession in 2002 at the latest, the law in effect prior to the amendments is applicable … . Accordingly, the plaintiffs were required to demonstrate that their possession was “(1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years” … . Additionally, under the former version of RPAPL 522 that was in effect at the relevant time, the plaintiffs were required to establish that the disputed area was either “usually cultivated or improved” or “protected by a substantial inclosure” … . “Since adverse possession is disfavored as a means of gaining title to land, all elements of an adverse possession claim must be proved by clear and convincing evidence” … .

Here, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law declaring that they were the owners of the disputed property by adverse possession. They submitted evidence that the disputed property had been enclosed by fencing since at least 1992, and that both the plaintiffs and their predecessor in interest cultivated and maintained the lawn on their side of the fence until 2010, while the property on the defendant’s side of the fence was wooded and remained uncultivated. Warren v Carreras, 2015 NY Slip Op 07967, 2nd Dept 11-4-15

 

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Dismissal of Criminal Case Did Not Collaterally Estop Civil Case Based Upon the Same Forged-Deed Allegation/No Statute of Limitations Applies to Case Based Upon Forged-Deed Allegation

In an action based upon the allegation the signature on a deed was forged, the Third Department determined no statute of limitations applies to forged deeds which are void ab initio and the dismissal of a Spanish criminal case based upon the forged-deed allegation did not collaterally estop the New York civil action:

We agree with plaintiffs that they are not collaterally estopped from maintaining this action. It is well established that “dismissal of a criminal charge . . . does not generally constitute collateral estoppel in relation to a civil action because of the difference in the burden of proof to establish the factual issues” … . Indeed, the Spanish court dismissed the Spanish criminal action “without prejudice,” expressly permitting the matter to “be referred to civil jurisdiction.” Inasmuch as this dismissal of the Spanish criminal action did not conclusively establish whether the signature was forged, and did not preclude plaintiffs from commencing a similar civil action, defendants have failed to satisfy their burden of proving “that this identical issue was necessarily decided in the [prior action] and is conclusive in the [present] action” … .

Nor should plaintiffs’ action have been deemed time-barred by the statute of limitations. While the limitations period for a cause of action sounding in fraud is the greater of six years after the cause of action accrued or two years after it could have been discovered with reasonable diligence (see CPLR 213 [8]), the Court of Appeals has recently held that this period does not apply when the particular species of fraud alleged is the forgery of a deed. The Court found that, unlike other fraud-based causes of action, “a claim against a forged deed is not subject to a statute of limitations defense” because of “the clarity of our law that a forged deed is void ab initio, and that it is a document without legal capacity to have any effect on ownership rights” … . Mazo v Mazo, 2015 NY Slip Op 07721, 3rd Dept 10-22-15

 

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