Scott E. Mollen

Adverse Possession Claim Denied—Failure to Demonstrate Exclusivity, Continuous Ten-Year Period and Hostility

The plaintiffs had commenced an action for “trespass, injunctive relief and judgment declaring that plaintiffs have a reciprocal easement on the driveway shared by the parties' adjoining properties.” The complaint alleged that “each property owns one-half of the driveway, which allows ingress and egress to the rear of each property” and that the defendant “blocks their use of the driveway by, among other things, parking vehicles on the driveway.” The defendant asserted a counterclaim for “trespass and judgment declaring that he owns the entire driveway by adverse possession.” The plaintiffs had moved for summary judgment dismissing the defendant's counterclaim for adverse possession.

The plaintiffs submitted an affidavit by a predecessor owner (predecessor). The predecessor owned the plaintiffs' property from June 29, 2009 until the property was sold to the plaintiffs. Prior to the predecessor's ownership, “her cousin,…, had owned the property since 1960.” The plaintiffs alleged that “a written easement allows reciprocal use of the driveway between [their] property and the neighboring property” and they provided “a copy of that easement.”

The predecessor, at her deposition, explained that she visited her cousin nearly every day beginning in 1962 and that the cousin had given permission for her neighbors “to use the driveway in between their two properties, in part because she did not own a vehicle, but that [the cousin] never relinquished her right to use the driveway.” The predecessor asserted that “she used the common driveway to access portions of the property, such as the basement, and that she witnessed [the cousin], the prior owner, do the same.” Additionally, the predecessor testified that “the neighbors erected a gate across the driveway, but that the gate was never locked or closed, and that she parked her car in the driveway since 1998.”

The defendant asserted that his family had owned their home since 1978 and that he became the sole owner in 2012. The defendant also explained that “in 1983, his family installed a metal gate at the entrance of the common driveway, which has a chain and padlock.” He claimed that “from 1983 until 'at least the late 1990s,' the family kept the gate locked, and they had the sole access to the driveway.” The defendant stated that “[f]ollowing such time, the family sometimes left the gate unlocked because they were less concerned about crime.”

Citing the easement, the plaintiffs argued that the defendants “cannot establish the exclusivity element of his adverse possession claim.” The plaintiffs submitted a copy of the written easement (easement), which they stated had been recorded in Aug. 1927. The easement granted “permission for 'ingress and egress for delivery autos and pleasure cars only to and from the garages erected at the rear of the premises….'” The garages had been destroyed as part of the Gowanus Expressway construction, which had occurred sometime prior to 1978. The court explained that:

The extent of an easement is limited by the language of the grant, and its terms are to be construed most strongly against the grantor in ascertaining the extent of the easement.…By its language, the written easement here is limited to travel to and from garages on the parties' respective properties, which neither party disputes are gone. Because the circumstances for which the easement was granted no longer exist, the easement is not valid.…

The court explained that although the written easement was no longer valid, the defendant had “not sufficiently established the exclusivity element of his adverse possession claim.” The court cited the predecessor's testimony that she and her cousin had used the driveway for ingress and egress, and for the predecessor to park her vehicle and that the gate had never been locked or closed.

Although the defendant argued that the gate had been locked between 1983 and the late 1990s, and that his family had sole access to the driveway, the defendant had become the owner of the property in 1995. He had not explained how “he has personal knowledge about events that took place prior to his ownership.” The court described the defendant's description of when the gate had been erected and locked as “somewhat vague.” The defendant had never made clear “when the adverse period began to run, or when title supposedly vested.”

Although the defendant described “efforts to take care of the driveway,” he never stated “when those efforts occurred.” Additionally, to the extent that the defendant sought “to 'tack' the adverse use of the driveway by his predecessors in ownership, he must also show that those predecessors intended to convey the adversely possessed driveway in their deed to him….” The deeds which had been submitted by the defendant, going back to 1978, did not include the driveway. Thus, the court found that the defendant failed to demonstrate “by clear and convincing evidence, that he satisfied the elements of adverse possession continuously for the required period of 10 years….”

Moreover, the plaintiffs had “sufficiently established that defendant's use of the driveway was not hostile, but was with the permission of [predecessor's cousin].” The predecessor had testified that the cousin gave the defendant's “permission to use the driveway” and the defendant had not contended otherwise. The court explained that “[s]uch permitted use negates the hostility element to adverse possession….” The court further noted that “adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner.”

Although the defendant alleged that his family had erected and locked the gate, the defendant did “not demonstrate personal knowledge of this information.” Moreover, the defendant's “addition of the gate, even if true, does not demonstrate hostility against the actual owner, who did not own a vehicle during the adverse period, and was not prevented from accessing the side of their property….”

Accordingly, the court granted plaintiffs' motion for summary judgment and the defendant's claim for adverse possession was dismissed. The court also dismissed the plaintiffs' claims for injunctive relief and declaratory judgment regarding the written easement. Additionally, the court held that the parties' claims for trespass against each other are “essentially offset and are dismissed.” The court directed that the defendant, “at his expense, and within 30 days of notice of entry of this order,…completely remove the fence and gate from plaintiffs' property.” Finally, the court ordered that “both parties shall immediately cease using or accessing the adjoining property's portion of any driveway, alleyway or yard.”

Comment: The plaintiffs' co-counsel, Michael Siris, of Solomon and Siris, explained that “this type of dispute often arises in Brooklyn because of the plethora of common driveways there.”

Adam Leitman Bailey of Adam Leitman Bailey, P.C., attorney for the defendant, advised that the decision is being appealed and that the Appellate Division granted a stay pending appeal.

Yee v. Panousopoulos, Sup. Ct., Kings Co., Index No. 4817/2014, decided July 2, 2018, Devin Cohen, J.

Landlord-Tenant—Appointment of Article 7A Administrator—People Who Occupy Their Apartment as an Incident to Employment and are Not Obliged to Pay Rent are Not “Tenants in Occupancy” for Purposes of RPAPL §770(1)

This decision involved a special proceeding which had been commenced pursuant to Real Property Actions and Proceedings Law (RPAPL) Art. 7A, seeking the appointment of an administrator for the subject property (Premises). The premises are a five family building which, at the time the proceeding had been commenced, “was solely occupied by the…petitioners.” The respondent landlord (respondent) had moved for partial summary judgment and for an order dismissing the proceeding, arguing that the petitioners lacked “the requisite minimum participation of one-third of the tenants occupying the premises as required by RPAPL §770(1).”

The court had previously found that the petitioners met the one-third of the tenants in occupancy requirement. At that time, the court stated:

Respondent fails to cite any controlling precedent for their proposition that a single tenant is per se insufficient to maintain a 7A proceeding, even where the single tenant constitutes more than one-third of the tenants in occupancy as required by RPAPL §770. Moreover, there are two petitioners, not just one.

The respondent thereafter alleged that four of the five apartments were occupied and that the non-petitioning tenants, “A,” “B” and “C” did not support the petition. Thus, the respondent contended that the petitioners lacked the requisite one-third of tenants in occupancy necessary to maintain the proceeding. The respondent asserted that it did not seek to reargue the court's prior decision. Rather, it claimed that the petitioners may not continue with the proceeding, since they no longer meet the statutory one-third requirement. The respondent also argued that since there was no notice of petition served at the commencement of the proceeding, the respondent's time to answer did not start to run until the date when the “Petition was to be heard.”

RPAPL §773, provides:

At the time when the petition is to be heard, the owner and any mortgagee or lienor of record, shall answer in writing. If the notice of petition was served at least eight days before the time at which it was noticed to be heard and it so demands, the answer shall be served at least three days before the time the petition is noticed to be heard and any reply shall be served at least one day before such time.

The petitioners had commenced the action by filing an order to show cause with a verified petition. Since the petitioners had commenced the proceeding without a notice of petition, the court found that the answer had been timely served pursuant to RPAPL §771. The court explained that the petitioners had “charted their course by the method chosen to commence this case and cannot now be heard to dispute the manner of respondents' answer.”

The petitioners contended that “the three alleged new tenants have not been in occupancy and actual occupancy is required under the statute.” They cited the respondent's prior opposition to the original order to show cause, wherein the respondent asserted that the petitioners “were the sole occupants of the building and therefore could not qualify as one-third tenant's in occupancy.” The petitioners also argued that to permit the “alleged new tenants to count toward the one-third tenant occupancy requirement would be patently unfair as these 'tenants' are employees of the landlord and their occupancy are an incident of their employment.”

The court rejected the respondent's argument that “A” was a tenant at the time the proceeding was commenced. The court cited the respondent's prior representation that the Premises had only been occupied by the petitioners.

The respondent also claimed that the “petitioners knew full well that at the time of commencement ['A'] occupied the apartment on the first floor….” “A” submitted an affidavit wherein he swore that he was a tenant occupying a first floor apartment at the premises. He expressed surprise that the petitioners had not listed him in the petition since they knew “A” and knew that “A” had “lived in the first floor apartment for a number of years.” Although the petitioners countered that “A,” the building's superintendent, had vacated his apartment, “A” claimed that “he only temporarily moved out of his apartment…so that [the] owner could conduct repairs therein, and moved back into his apartment” after repairs were completed. “A's” affidavit did not mention that he had temporarily vacated the premises.

The court found that the allegation that “A” was a tenant at the commencement of the proceeding was not credible.

The respondent argued that the one-third of tenants in occupancy is a requirement that continues throughout the proceeding “through completion of the trial, not just at commencement” and that “A,” “B” and “C” qualify as tenants in occupancy as required by the statute.

Based on prior case law, the statute and its legislative history, the court held that “those whose occupancy is an incident of employment and with no obligation to pay rent, do not qualify as tenants in occupancy for purposes of RPAPL §770(1).”

The court observed that “[t]he literal statutory language and the apparent legislative intent of the [statute] was to allow the tenants to have repairs effectuated by an administrator with the proceeds from the rent roll.” The occupants/employees in this case pay no rent and only occupy their apartments as “an incident of their employment, which is in the total and absolute control of the owners. This presents an overwhelming conflict of interest for these employees. Should they join in the 7A application they stand to lose their jobs and their homes. This untenable position is clearly not what the Legislature intended.”

The court further noted that RPAPL §776 provides for the tenants to deposit rents with the administrator. Since the respondent's employees “cannot participate in the deposit of rents to facilitate the repair of the conditions, the stated and primary purpose of the statute, they cannot be counted as 'tenants' determining the requisite one-third tenants in occupancy.” Accordingly, the court denied the respondent's motion for summary judgment.

Matter of Tejada, Civ. Ct., Kings Co., Index No. HP201/2018, decided June 29, 2018, Kuzniewski, J.

Foreclosures—RPAPL §1304 Notice Required Even If Borrower No Longer Occupies the Property—Loan Remained A “Home Loan”

A defendant moved to dismiss a mortgage foreclosure action on the grounds that the plaintiff failed to serve the defendant with “notice of the impending foreclosure, as he claims Section 1304 of the New York Real Property Actions and Proceedings Law (RPAPL) requires.” The court granted the motion to dismiss.

After the defendant had purchased the subject property and executed a note and mortgage, he had sold the mortgaged property. The property had then been subdivided among new owners. Although the plaintiff had sent a 30-day cure notice to the defendant, it did not send the defendant a notice required under RPAPL §1304, advising the defendant that he was at risk of foreclosure. The plaintiff believed that since the defendant no longer resided at the property, the defendant was not entitled to such notice.

The court dismissed the plaintiff's foreclosure action for failure to send the defendant the required RPAPL §1304 notice. After reviewing statutory and case law, the court found that RPAPL §1304 mandates that a pre-foreclosure notice be sent to the borrower when the loan was a “'home loan,' even if the borrower subsequently” vacated the subject property.

The salient issue was whether a loan “ceases to be a 'home loan' for purposes of RPAPL §1304, when the borrower no longer occupies the property securing the loan as his or her primary residence.” The court explained that “[b]ased on the text of RPAPL §1304, read as a whole, such a borrower is nevertheless entitled to pre-foreclosure notice.” Accordingly, the court granted the defendant's motion to dismiss the foreclosure action.

Comment: The plaintiff had asserted, inter alia, that a Federal Rule of Civil Procedure 12(b)(6) “motion may be granted only 'if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'” However, the court explained that “[a]fter Twombly and Iqbal, this 'no set of facts' pleading standard is no longer the law. See Stephens v. City of Tarrant, No. 16-CV-274, 2017 WL 34829, at *2 (N.D. Ala. Jan. 4, 2017).” The Supreme Court had “clearly abrogated this standard in May of 2007, over [eleven] years ago.” The court opined that the plaintiff's counsel had “no excuse for quoting it as current law, and doing so…undermines the credibility of their legal arguments.”

Courchevel 1850 LLC v. Stern, USDC, EDNY, Case No. 17-CV-1794, decided June 27, 2018, Garaufis, J.

Scott E. Mollen is a partner at Herrick, Feinstein.