You are here: / Real Property Law

Question of Fact Whether Abutting Landowners Owned to the Centerline of the Roadway Bed, Relevant Law Explained

Reversing Supreme Court, the Second Department determined there was a question of fact whether abutting landowners owned to the centerline of a roadway bed, or whether defendants had acquired title to the roadway bed. The court explained the relevant analytical criteria:

” [W]hen an owner of property sells a lot with reference to a map, and the map shows that the lot abuts upon a street, the conveyance presumptively conveys fee ownership to the center of the street on which the lot abuts, subject to the rights of other lot owners and their invitees to use the entire area of the street for highway purposes'” … .

“The presumption is not, however, inflexible and will yield to a showing in the deed of a contrary intent to exclude from the grant the bed of the street” … . Indeed, the presumption can be rebutted ” by determining the intent of the parties gathered from the description of the premises [conveyed] read in connection with the other parts of the deed, and by reference to the situation of the lands and the condition and relation of the parties to those lands and other lands in the vicinity'” … . Thus, the presumption can be rebutted by a showing in the deed of a contrary intent to exclude from the grant the bed of the street … . Stanley Acker Family L.P. v DePaulis Enters. V, Ltd., 2015 NY Slip Op 07259, 2nd Dept 10-7-15

 

Requirements of Adverse Possession by “Tacking” Explained (Not Met Here)

In affirming the grant of defendant’s motion for summary judgment dismissing the complaint claiming adverse possession of a strip of land, the Second Department explained the requirements for adverse possession by “tacking” the possession of prior owners:

A party claiming adverse possession may establish possession for the statutory period by “tacking” the time that the party possessed the property onto the time that the party’s predecessor adversely possessed the property … . Tacking is permitted where there is an “unbroken chain of privity between the adverse possessors” … . For tacking to apply, a party must show that the party’s predecessor “intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed” … . In order to succeed on a claim of adverse possession, a party must provide clear and convincing evidence that the possession was “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” … . The party must also show that the disputed property was “usually cultivated or improved” or “protected by a substantial inclosure” (RPAPL former § 522 …). Munroe v Cheyenne Realty, LLC, 2015 NY Slip Op 06902, 2nd Dept 9-23-15

 

Deed-Escrow Conditions Never Satisfied—Transfer Never Took Place

The Second Department explained that property is not transferred until the escrow conditions (re: a deed held in escrow) are satisfied:

“When a deed is delivered to be held in escrow, the actual transfer of the property does not occur until the condition of the escrow is satisfied and the deed is subsequently delivered to the grantee by the escrow agent” … . Here, in support of their motion for summary judgment dismissing the complaint, the defendants established their prima facie entitlement to judgment as a matter of law … by submitting, inter alia, an escrow agreement … entered into by the plaintiff and the defendant … . Pursuant to the agreement, an escrow agent was required to hold the deed to the subject property until the plaintiff paid certain sums due on a purchase money mortgage. The evidence proffered by the defendants established, prima facie, that the plaintiff failed to satisfy the aforementioned condition of the escrow agreement and, thus, actual transfer of the subject property to the plaintiff never took place. Xui v Iron City Properties, Inc., 2015 NY Slip Op 06898, 2nd Dept 9-23-15

 

, , ,

A Town’s Zoning Powers Include the Creation of a Zoning District for Senior Citizens—Residents of a Retirement Community Had the Power to Enforce the Zoning Ordinance Limiting the Use of the Community Portion of a Building to Community Residents—Agreement to Pay Social Membership Fees Re: a Community Golf Course Constituted a Covenant Which Ran with the Land

The Second Department, in a detailed decision dealing with many issues, resolved a dispute concerning the use of the community portion of a building within a retirement community, which included a golf course. The plaintiffs (residents) alleged the community portion of the building was to be used solely by the community residents and should not be used for special events involving non-residents. The Second Department determined (1) the plaintiffs had the power to enforce the zoning ordinance requiring that the community portion of the building be for the exclusive use of the retirement-community (over 55) residents, (2) the residents were benefitted by easements over the common areas held by the defendants and therefore were obligated to share in the cost of maintenance of those areas, and (3) the requirement that the residents pay social membership fees (re: the golf course) was a covenant which ran with the land, binding subsequent purchasers. The Second Department specifically held that zoning ordinances may properly create a zoning district for senior citizens:

… Town Law § 268(2) permits the individual plaintiffs to enforce the Town Code § 198-21.2(F)(1)(b) to the extent it gives them exclusive use of the community building portion of the combined building. The defendants contend, however, that even if the individual plaintiffs may use Town Law § 268(2) to seek enforcement of this portion of Town Code § 198-21.2(F)(1)(b), it, in fact, may not be enforced because the Town lacked the authority to regulate who owns or occupies land …  . A town does not act in excess of its authority when it creates a zoning district for senior citizens …, or when it limits the occupancy of dwelling units within a planned retirement community to persons aged 55 or over … . Since these are valid exercises of a town’s zoning power, it must follow that a town may also limit the use of a recreational facility within a senior residential community to those seniors living there.  * * *

The defendants were given an easement over the common areas and common elements, including roadways, walkways, and landscaped areas, for ingress, egress, and the retrieval of golf balls. … Generally, absent an express agreement, all persons benefitted by an easement must share ratably in the cost of its maintenance and repair … .  * * *

…[T]the defendants established that the covenant to pay social membership fees runs with the land, as the record demonstrates that the “grantor and grantee intended that the covenant should run with the land,” “the covenant is one touching or concerning the land with which it runs,” and “there is privity of estate between the . . . party claiming the benefit of the covenant and the right to enforce it, and the . . . party who rests under the burden of the covenant” … . Greens at Half Hollow Home Owners Assn., Inc. v Greens Golf Club, LLC, 2015 NY Slip Op 06887, 2nd Dept 9-23-15

 

, ,

Requirements for an Easement In Favor of Public Use Not Met

The Second Department determined the city had failed to demonstrate that an unmapped roadway used since the 1970’s had become a public highway under the Highway Law, and the city failed to demonstrate an “easement in favor of public use” existed over the portion of the roadway which was on defendant’s land. The “Highway Law” statute invoked by the city applied only to towns, not cities. And the requirements for an easement in favor of public use had not been demonstrated. The court explained the easement requirements:

The City argues … that an easement in favor of the public was created over the defendant’s property pursuant to the common-law doctrine of dedication. This doctrine requires evidence of the owner’s intent to dedicate the property for public use and acceptance of the dedication by the public authorities … . Here, however, the City’s submissions in support of its motion for summary judgment failed to establish, prima facie, that the defendant’s land had been dedicated to the use of public travel by any prior owner or the defendant. City of New York v Gounden, 2015 NY Slip Op 06569, 2nd Dept 8-19-15

 

,

Purported Deed Was Actually an Usurious Mortgage—All Related Transfers and Encumbrances Void

The Second Department determined a deed purporting to transfer property was actually an usurious mortgage and therefore void.  All further attempted transfers of the property were therefore a nullity.  The deed was provided in return for a $200,000 loan requiring repayment of $220,000 in 90 days. The transaction was therefore an illegal mortgage with a 40% annual interest rate:

Real Property Law § 320 provides, in pertinent part, that a “deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage” (Real Property Law § 320…). In determining whether a deed was intended as security, ” examination may be made not only of the deed and a written agreement executed at the same time, but also [of] oral testimony bearing on the intent of the parties and to a consideration [of] the surrounding circumstances and acts of the parties'” … . Thus, ” a court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as a security for a loan of money. That court looks beyond the terms of the instrument to the real transaction; and when that is shown to be one of security, and not of sale, it will give effect to the actual contract of the parties'”… .  * * *

Real Property Law § 245 provides that a “greater estate or interest does not pass by any grant or conveyance, than the grantor possessed or could lawfully convey, at the time of the delivery of the deed.” Thus, “conveyances of land to which the grantors had no title convey no interest to the grantees” … . Likewise, “[i]f a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing”… . Bouffard v Befese LLC, 2013 NY Slip Op 07925, 2nd Dept 11-27-13

 

, ,

Although Plaintiff Limited Liability Company’s Articles of Incorporation Were Not Filed When It Took Title to Real Property—It May Have Validly Taken Title Pursuant to the “De Facto Corporation Doctrine”

The Second Department determined the defense motion to dismiss based upon documentary evidence was properly denied. Plaintiff limited liability company was able to demonstrate that it may be entitled to a declaration that it was the fee simple owner of property under the “de facto corporation doctrine.” When plaintiff limited liability company took title, the company was not yet “in legal existence” because all the necessary documents had not been filed. Under the “de facto corporation doctrine” the limited liability company could be deemed to have taken title if (1) a law existed under which it might be organized, (2) there was an attempt to organize, and (3) there was an exercise of corporate powers thereafter:

Here, the documentary evidence submitted by [defendants] in support of their motion demonstrated that the plaintiff’s articles of organization had not been filed with the New York State Department of State prior to the conveyance to the plaintiff of the subject property. However, in opposition to the motion, the plaintiff submitted the affidavit of its sole member, which demonstrated the applicability of the de facto corporation doctrine … . Specifically, the affidavit of the plaintiff’s sole member demonstrated that there was a law under which the LLC might be organized (see Limited Liability Law §§ 203, 209), that the plaintiff made a “colorable attempt” to comply with the statutes governing the formation of an LLC, including the filing requirement, and that the plaintiff exercised its powers as an LLC thereafter… . Lehlev Betar, LLC v Soto Dev. Group, Inc., 2015 NY Slip Op 06496, 2nd Dept 8-12-15

 

, , , ,

Petition Sufficiently Alleged the Town’s Restrictive Covenant Was Invalid (1) Because It Sought to Regulate the Owner of Land Rather than the Use of the Land, (2) Because It No Longer Could Accomplish Its Purpose, and (3) Because It Effected an Unconstitutional Taking of Petitioner’s Land

The Second Department determined petitioner had stated causes of action contesting the validity and enforceability of a restrictive covenant promulgated by the town requiring that condominiums built by petitioner be sold rather than leased. Petitioner had sufficiently alleged (1) the restrictive covenant was invalid because it regulated the person who owned the land (petitioner) rather than the use of the land, (2) the restrictive covenant was not enforceable because its purpose could not be accomplished, and (3) the restrictive covenant amounted to an unconstitutional taking. The court explained the applicable legal principles:

The power to zone “is not a general police power, but a power to regulate land use” … . “It is a fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it'” … . Furthermore, ” a zoning ordinance will be struck down if it bears no substantial relation to the police power objective of promoting the public health, safety, morals or general welfare'” … .

“[R]estrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy” … . However, even the ” [p]urchase of property with knowledge of [a] restriction does not bar the purchaser from testing the validity of the zoning ordinance [because] the zoning ordinance in the very nature of things has reference to land rather than to owner'” … .

…[Petitioner] sufficiently alleged that the restrictive covenant is improper because it regulates [petiioner’s] ability as the owner of the property to rent the units rather than the use of the land itself. [Petitioner] has further alleged that, particularly in light of the provision permitting future owners to lease units in the development, the restrictive covenant “bears no substantial relation to . . . the public health, safety, morals or general welfare”… .

“Pursuant to RPAPL 1951(1), a restrictive covenant shall not be enforced if, at the time enforceability of the restriction is brought into question, it appears that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason'” . Here, assuming that there is a benefit to be obtained by requiring the units to be sold rather than rented, [petitioner] has alleged that, because the rental restriction imposed by the restrictive covenant applies only to it and not to any subsequent owner of any of the units in the planned development, it is of no substantial benefit to the Town or its citizens. In support of its motion to dismiss, the Town has offered no explanation as to why this is not so. … * * *

With respect to the third cause of action, which alleged an unconstitutional taking based upon “denial of development, as opposed to excessive exactions” …, the test set forth by the United States Supreme Court in Agins v City of Tiburon (447 US 255) applies … . Pursuant to this test, “a zoning law effects a regulatory taking if either: (1) the ordinance does not substantially advance legitimate state interests’ or (2) the ordinance denies an owner economically viable use of his land'” … . However, “[a] reasonable land use restriction imposed by the government in the exercise of its police power characteristically diminishes the value of private property, but is not rendered unconstitutional merely because it causes the property’s value to be substantially reduced, or because it deprives the property of its most beneficial use” … . Thus, a court must examine “(1) [t]he economic impact of the regulation on the claimant’; (2) the extent to which the regulation has interfered with distinct investment-backed expectations’; and (3) the character of the governmental action'”… . Blue Is. Dev., LLC v Town of Hempstead, 2015 NY Slip Op 06488, 2nd Dept 8-12-15

 

, ,

agreement to maintain a driveway on a right-of-way ran with the land.

The Third Department held small claims court had properly determined an agreement to maintain a driveway on a right-of-way passing through the grantor’s front parcel to the grantee’s rear parcel ran with the land. The Third Department noted its review of small claims court rulings is confined to whether “substantial justice” was done according to the rules and principals of substantive law. Small claims court correctly held that the original parties to the property transfer intended the maintenance agreement to run with the land and that the agreement “touches and concerns” the land.  Therefore the defendant, the subsequent purchaser of the rear parcel, was bound by the maintenance agreement:

“Appellate review of small claims is limited to determining whether ‘substantial justice has not been done between the parties according to the rules and principles of substantive law'” … . Accordingly, this Court will overturn such a decision only if it is clearly erroneous … . As relevant here, to establish that the 1982 agreement ran with the land and was binding on defendants, plaintiff was required to establish that “(1) the grantor and grantee intended the [agreement] to run with the land, (2) there is privity of estate between the parties to the current dispute, and (3) the [agreement] touches and concerns the land” … . * * *

…[A]n agreement touches and concerns the land “if it affects the legal relations — the advantages and the burdens — of the parties to the [agreement], as owners of particular parcels of land and not merely as members of the community in general”… . Pugliatti v Riccio, 2015 NY Slip Op 06398, 3rd Dept 7-30-15

 

,

Cotenant’s Exclusive Possession and Payment of Taxes and Maintenance Costs, Standing Alone, Are Not Enough to Establish Adverse Possession As Against a Cotenant/Criteria for Ouster of Cotenant Not Met

The Third Department determined that the motion to dismiss for failure to state a cause of action was properly granted. A cotenant who had resided at the property, maintained the property, and paid the taxes for over two decades, brought an action seeking exclusive ownership based upon ouster of defendant cotenant and/or adverse possession. Neither the complaint nor plaintiff’s submissions established the statutory criteria for ouster or adverse possession (Real Property Actions and Proceedings Law [RPAPL] 541) . There was no unequivocal expression by the possessory cotenant that the property was being adversely possessed, and the inclusion of the defendant cotenant’s name on a property insurance policy belied adverse possession. The court noted that exclusive possession and payment of maintenance expenses by a cotenant, standing alone, do not establish adverse possession:

The law that would have provided … plaintiff a valid legal claim with regard to the underlying property dispute is RPAPL 541, which provides that, “[w]here the relation of tenants in common has existed, the occupancy of one tenant . . . is deemed to have been the possession of the other, notwithstanding that the tenant so occupying the premises . . . has claimed to hold adversely to the other. But this presumption shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, . . . or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his [or her] cotenant.” It is well settled that, “absent ouster, the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may be said to acquire full title by adverse possession” … .

We reject plaintiff’s contention that she and Lindine ever ousted defendant or defendant’s parents from the property. An ouster will not be deemed to have occurred unless the possessory cotenant, either through words or actions, unequivocally expresses to the nonpossessory cotenant that the property is being adversely possessed … . * * *

Plaintiff alternatively contends that, even if no ouster has been established, she and Lindine adversely possessed the property, given their exclusive use of it for more than two decades (see RPAPL 541). In support of this argument, plaintiff emphasizes that she and Lindine paid all taxes and expenses for the property, and made all necessary repairs to its structural improvements. Defendant never visited the property during the years that plaintiff and Lindine lived there permanently and defendant’s parents, it is claimed, only did so twice. Even accepting these allegations as true, “exclusive possession and the payment of maintenance expenses by a [possessory] cotenant are[, standing alone,] insufficient to establish a claim of right for purposes of adverse possession as against a cotenant” … . Lindine v Iasenza, 2015 NY Slip Op 06275, 3rd Dept 7-23-15

 

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