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Ten Year Adverse Possession Period Began After Ten Year Permissive Use Period Expired

The Second Department determined that plaintiffs acquired property by adverse possession, even though the initial use of the property was by permission. The permission ceased by statute after ten years, and another ten years of hostile use passed:

A party seeking to obtain title by adverse possession must prove, by clear and convincing evidence, the following common-law requirements of adverse possession: that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years … . Here, only the first element is in dispute. According to the defendants, the plaintiffs’ use of the properties was by permission. * * *

…[A] landlord/tenant relationship existed between the parties and their predecessors and, therefore, RPAPL 531 applies. Since no written lease existed and the admissible evidence established that neither the plaintiffs nor their predecessor paid rent for their use of the properties since July 21, 1981, any permission that may have been granted to the plaintiffs or their predecessor to use the properties effectively ceased after 10 years (see RPAPL 531…). Thus, by operation of RPAPL 531, the plaintiffs’ adverse possession of the properties commenced on July 21, 1991. Under the circumstances of this case, we agree with the Supreme Court that the plaintiffs established their hostile use of the properties for a period of 10 years after the permissive period expired …, and that the plaintiffs were, therefore, entitled to a judgment declaring them to be the owners in fee simple absolute of the subject properties. Auto Gobbler Parts, Inc v Serpico, 2013 NY Slip Op 05977, 2nd Dept, 9-25-13

 

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Evidence Supported Finding Certificate of Acknowledgment Attached to Deed Was Forged

In affirming the trial court’s determination a power of attorney (a certificate of acknowledgment) had been forged, thereby rendering a deed and five mortgages void, the Second Department wrote:

“A certificate of acknowledgment attached to an instrument such as a deed raises a presumption of due execution” … . “[A] certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing so as to amount to a moral certainty” … . …

…[W]e find on this record that there nonetheless existed clear and convincing evidence that the power of attorney was in fact forged, particularly in light of the undisputed evidence showing that the plaintiff, as the former owner of the subject property, received no consideration from the sale of the property or from the subject mortgage loans. Neuman v Neuman, 2013 NY Slip Op 05885, 2nd Dept 9-18-13

 

Ownership Acquired by Adverse Possession Demonstrated

The Second Department reversed Supreme Court and determined plaintiffs had proved ownership of a strip of land by adverse possession:

…[W]e conclude that the plaintiffs demonstrated ownership to the subject strip through adverse possession. ” A party seeking to obtain title by adverse possession must prove by clear and convincing evidence . . . that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years'” … . Additionally, since the adverse possession claim is not founded upon a written instrument, the plaintiffs must establish, in accordance with the law in effect at the time this action was commenced, that the disputed property was either “usually cultivated or improved” or “protected by a substantial inclosure” (RPAPL former 522…).

Here, the plaintiffs demonstrated that, by building and maintaining a wall along the subject strip, which was styled to match their house and attached to a gate attached to their house, they continually possessed the subject strip, for more than 10 years, in a manner that was open and notorious, exclusive, and inimical to the rights of the [defendants’] predecessor… . Marone v Kally, 2013 NY Slip Op 05882, 2nd Dept 9-18-13

 

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Extrinsic Evidence Properly Considered to Determine Intent of Parties Re: Ambiguous Deed

In an action to quiet title, the Second Department determined a deed was ambiguous on its face and extrinsic evidence was therefore admissible to ascertain the intent of the parties:

Real Property Law § 240(3) provides that “[e]very instrument creating [or] transferring . . . real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.” Where the language used in a deed is ambiguous such that it is susceptible of more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances … . Moreover, ” courts may as a matter of interpretation carry out the intention of a contract by transposing, rejecting, or supplying words to make the meaning of the contract more clear . . . However, such an approach is appropriate only in those limited instances where some absurdity has been identified or the contract would otherwise be unenforceable either in whole or in part'” … .  Here, …the 1989 deed purporting to convey the subject property to IDI was ambiguous on its face. Under such circumstances, it was proper for the court to look to extrinsic evidence in order to effectuate the intent of the parties.  Al’s Atl Inc v Shatma, LLC, 2013 NY Slip Op 05604, 2nd Dept 8-14-13

 

Criteria for Easement Granted in General Terms

In determining Supreme Court should have denied defendant’s motion to dismiss, the Second Department explained the criteria for an easement granted in general terms:

Where, as here, an easement is granted in general terms, “the extent of its use includes any reasonable use necessary and convenient for the purpose for which it is created”…. Further, the holder of an access easement “cannot materially increase the burden of the servient estate or impose new and additional burdens on the servient estate” … . Shuttle Contr Corp v Peikarian, 2013 NY Slip Op 05057, 2nd Dept 7-3-13

 

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Leaky Condominium Roof Supported Negligence and Nuisance

In an action based on a leaky roof in a condominium, the First Department determined plaintiffs were entitled to summary judgment on the negligence cause of action against the sponsor and the cause of action for nuisance, also sounding in negligence, should not be dismissed:

The sponsor owed a nondelegable duty to plaintiffs to keep the condominium, including its roof, in good repair (see Multiple Dwelling Law § 78[1];…) . The sponsor breached that duty: Its principal… admitted that the original roof that the sponsor had caused to be installed did not render the condominium watertight and that there were instances of water infiltration into plaintiffs’ unit that needed to be addressed by the sponsor. * * *

Plaintiffs are correct that nuisance can be negligent; it does not have to be intentional…. In any event, they raised a triable issue of fact whether the sponsor’s allowing water to continue infiltrating their unit was intentional….  Liberman v Cayre Synergy 73rd LLC, 2013 NY Slip Op 04996, 1st Dept 7-2-13

 

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Plaintiffs Demonstrated They Acquired Title to Property with Cabin by Adverse Possession

The Third Department affirmed Supreme Court’s grant of summary judgment to plaintiffs in their RPAPL article 15 action to quiet title under the doctrine of adverse possession.  The owner of the property, which included a cabin, died intestate and plaintiffs, who allegedly were close personal friends with the owner’s brother (who used the cabin and also died intestate), took possession of the property.  The Third Department wrote:

…[T]o successfully acquire title by adverse possession, plaintiffs must establish by clear and convincing evidence that their occupation 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 statutory period (at least ten years)” … .  Additionally, because plaintiffs’ “claim was not founded upon a written instrument describing the boundaries of the property,” they were required to “establish that the land was usually cultivated or improved or protected by  a substantial inclosure….In support of their motion for summary judgment, plaintiffs submitted evidence that, since the time of [the owner’s brother’s] death in 1976, they have enjoyed the exclusive use and possession of the property, have paid the taxes and made repairs upon the property, and have permitted various family members to use and reside upon the property.  In 1990, plaintiffs improved the cabin to make it suitable for year-round use, and have used it throughout the year since that  time.  According to plaintiffs, no one  else has had  possession or control of the property since they first took it more than 35 years ago.  Quinlan v Doe, 516140, 3rd Dept 6-27-13

 

Validity of Easement for Access to Lake Affirmed

In affirming Supreme Court’s determination that the relevant deed allowed recreational use of a parcel of land (parcel 4) for access to a lake, and Supreme Court’s order to remove a fence which blocked access, the Third Department explained the relevant legal principles as follows:

“[T]he construction of a  deed, including  any  easements  set  forth  therein,  is generally  a question of law for the court, with extrinsic evidence being considered only if there are ambiguities”….  As owners  in the subdivision, plaintiffs’ deed sets forth various rights regarding parcel 4, including swimming privileges, docking privileges and – as relevant here – recreational  privileges. The recreational right is broadly set forth as having “the right to use, for recreational purposes, Parcel #4.” Significantly, this is not a  right merely  to cross parcel 4 to reach the lake. Consistent with the expansive right granted, subdivision owners exercised the recreational right in sundry manners, such as having picnics in various places on parcel 4 or placing chairs on the parcel to enjoy the view. Once on parcel 4, there is no relevant limitation – other than reasonableness and safety – as to where on the parcel subdivision owners  exercised their recreational rights (see generally Bruce and Ely, The Law of Easements and Licenses in Land, Location and Dimensions  of  Easements  §  7:3).  Jankowski v Lake Forest Homeowners, Inc, 516015, 3rd Dept 6-27-13

 

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Foreclosure Proceeding Can Be Brought by Party Who Did Not Provide Consideration; Tenants By the Entirety Can Mortgage Their Interest in Property

In a mortgage foreclosure action, the Second Department explained that it was not necessary that the foreclosing party have provided the consideration and that, with respect to a tenancy by the entirety, each tenant can sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other:

“[T]he validity of the mortgage usually depends indirectly upon consideration, not for the mortgage itself, but for the obligation upon which it depends”…. It is not necessary, however, that the party seeking to foreclose provided the consideration. A mortgage may be valid as long as proper consideration exists for the underlying obligation; once a party has lawfully obtained both the mortgage and the underlying promissory note, that party has standing to foreclose on the mortgage in the event of the default on the borrower’s obligation. * * *

“As tenants by the entirety, both spouses enjoy an equal right to possession of and profits yielded by the property” …. However, “there 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”…. Nevertheless, “a conveyance by one tenant, to which the other has not consented, cannot bind the entire fee”… .  Rose v Levine, 2013 NY Slip Op 04788, 2nd Dept 6-26-13

 

Doctrine of Practical Location Re: Boundary Line Dispute Explained

In a boundary-line dispute, the Second Department affirmed the dismissal of a counterclaim for a judgment declaring that a hedgerow and chain-link fence running parallel to the recorded boundary line was the legal line under the doctrine of practical location.  The Second Department explained the doctrine as follows:

Pursuant to the doctrine of practical location, “[a] practical location of a boundary line and an acquiescence therein for more than the statutory period is conclusive of the location of such boundary . . . although such line may not in fact be the true line according to the calls of the deeds of the adjoining owners”…. “[A]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled'”….  Jakubowicz v Solomon, 2013 NY Slip Op 04578, 2nd Dept, 6-19-13

 

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