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Commercial Leasing Law & StrategyFeaturesLandlord Tenant LawLitigationRegulation

Legal Possession: What Does It Mean?

By Thomas. C. Lambert and Steven Shackman

"Legal possession" is a term used by the landlord-tenant bar. We recently came upon a settlement agreement which required the tenant to deliver "broom-clean legal possession" to      the landlord on or before a date certain. In another situation, a good-guy guaranty limited liability to obligations accruing prior to the date the tenant delivers "legal possession" to the landlord. What exactly is meant by "legal possession?"

Let's Start With 'Possession'

Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession." Possession is a physical concept, not a right. As stated in Black's Law Dictionary, possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property. That dominion and control may be exercised by excluding others, or letting others in. It is the fact of that physical control that is possession. That power might be exercised legitimately, or it might be exercised wrongfully. It might be exercised in a manner that is a violation of law. But either way, it is the physical fact, the fact of having or holding the property in one's power and control, that constitutes possession.

Under New York law, a person who has been in peaceable possession for 30 consecutive days or longer may not legally be removed by force, even if that person's possession was obtained wrongfully. It is not a question of what the person's underlying rights may be. Whether the person is a tenant under a lease, a squatter, or even one who himself entered into possession by unlawful means or by force, a person who has been in peaceable possession for at least 30 consecutive days may not legally be removed by force. The owner or other person with a superior right of possession must seek the person's eviction by commencing a case in court. RPAPL §711; Mitchell v. City of New York, 154 Misc.2d 222 (Civ. Ct. Bx. Co. 1992) (residential occupant in possession for at least 30 days shall not be removed from possession except in a special proceeding); Sol De Ibiza v. Panjo Realty, 29 Misc.3d 72 (App. Term 1st Dept. 2010) (a right to self-help specifically reserved in a commercial lease may be utilized only where it is effectuated "peaceably").

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