Real Property Law

The Appellate Division modified only to remit for entry of a judgment declaring that the scout organization does not have title to the property. The court first concluded that the county had demonstrated that it had title to the property and that its right was inalienable. The county demonstrated that none of the deeds granted by the grantors to the Parkway Commission between 1913 and 1915 included land in Yonkers or land that included any reservations of rights to the scout organization's predecessors. The court then held that the scout organization's adverse possession claim could not succeed because a municipality may not lose title to inalienable property by adverse possession.

Comment

Property made inalienable by statute is not subject to adverse possession claims. The court in City of New York v. Wilson & Co., 278 NY 86, affirmed the Appellate Division's holding that the adverse possession did not divest the City of New York of land formerly under water because an 1871 statute defined the property as "wharf property," and an 1873 statute prohibited the City from selling wharf property. In rejecting the adverse possessor's claim of title, the Court of Appeals asserted that allowing statutorily inalienable land to be acquired by adverse possession would subvert the legislature's purpose in making the property inalienable in the first place. Id. at 97.

Even if no statute has made land inalienable, if a municipality dedicates or uses property for public purposes (purposes that benefit the public at large), the municipality hold the property within its governmental capacity, and the property is not subject to adverse possession claims, even if the government leases some of the property to private parties. For example, in West Ctr. Cong. Church v. Efstathiou, 215 A.D.2d 753, the Appellate Division affirmed Supreme Court's rejection of an adverse possession claim and grant of summary judgment to the City of Yonkers because the City had declared the disputed property a public street. At issue was a church's claim to a portion of a mapped street in Yonkers that abutted the church's property. The court emphasized that the City's declaration evinced ownership in the City's governmental capacity. Id. at 754. Similarly, in Gallo v. City of New York, 41 A.D.3d 630, the Second Department reversed Supreme Court's denial of New York City's summary judgment motion rejecting an adverse possession claim because the city used the property to monitor leachate and the migration of landfill gas from Fresh Kills Landfill. The court held that because the City's lease of a portion of the land for mining, purifying, and selling landfill gas did not establish that the city actually held the land in its proprietary capacity. Id. The court reasoned that "[t]he existence of a private profit motive by [a] lessee[] does not preclude the operation of the property from serving a public purpose." Id.

In contrast, when government holds property for tax collection purposes or with the intent to sell, the land is held in a proprietary capacity and is subject to adverse possession claims. For instance, in Casini v. Sea Gate Ass'n, 262 A.D.2d 593, the court held that Sea Gate Association acquired the disputed land through adverse possession when the City of New York had acquired title through a tax foreclosure proceeding and offered no evidence that it made any public use of the property or dedicated it for public use, over a 15-year period. The court found that the City held the property for tax collection purposes and asserted that such purpose is not a public use that renders a city's ownership within its governmental capacity. Similarly, in Vaccaro v. Town of Islip, 181 A.D.3d 751, the court granted an adverse possessor's motion for summary judgment because the county had acquired the property at a tax foreclosure proceeding and then conveyed it to the town, which made no use of the disputed land. In holding that the town owned the property in its proprietary capacity, the court emphasized that the Town failed to submit evidence that it used the property for municipal services while in possession of the property. Monthie v. Boyle Road Assocs., 281 A.D.2d 15, illustrates the principle that when a government does not use the property and lists it for sale, the government holds property in a proprietary capacity. The court denied a school district's motion for summary judgment seeking to dismiss resident landowners' adverse possession claims when, after years of non-use the school district sought to sell the unused portion of a 48-acre parcel, listing it a "no longer required for school purposes." The court did not, however, decide whether the resident landowners satisfied all the elements of adverse possession.

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Easement Not Subject to Termination Under RPAPL 1951

Fenton v. Floce Holding, LLC, 2024 WL 3588158, AppDiv, Second Dept. (memorandum opinion)

In servient owner's action for a judgment declaring that an easement over his property is invalid, servient owner appealed from Supreme Court's dismissal of the complaint. The Appellate Division affirmed, holding that the easement had not been abandoned and was not subject to termination under RPAPL 1951.

Servient owner and dominant owner own adjacent parcels in Long Beach. A 1986 judgment granted an easement over servient owner's parcel, but the dominant parcel has been vacant since that time. Servient owner brought this action to establish that there was no easement because the 1986 judgment was improperly recorded, because the easement had been abandoned, and because the easement was of no substantial benefit to the dominant owner under RPAPL 1951. Supreme Court dismissed the action.

In affirming, the Appellate Division first held that relief from the 1986 judgment could only be obtained by a motion in the court that rendered the judgment. The court then rejected servient owner's abandonment claim, noting that nonuse alone does not constitute abandonment and in this case, there was nothing more to suggest that the easement had been abandoned. Finally, the court noted that RPAPL 1951 applied only to covenants and negative easements, not affirmative easements like the one at issue in this case.

Comment

RPAPL 1951 authorizes a court to extinguish a restrictive covenant or negative easement when the restriction no longer provides any actual and substantial benefit to the party for whose benefit it was originally intended. In Clintwood Manor, Inc. v. Adams, 29 A.D.2d 278, the court applied section 1951 to extinguish a restrictive covenant limiting the use of the premises for a residence or dwelling when the servient owners established that fewer than 10 of the original 407 lots in the subdivision had residences constructed upon them. Id. The balancing of the equities favored the servient owners. However, in Ramaquois Real Est. Co., LLC v. Town of Haverstraw, 219 A.D.3d 1538, the court held that because the restrictive covenant, which limited the property's use to a commercial recreation area, continued to provide benefit to the town owner, it could not be terminated under RPAPL 1951. The town had extracted the covenant as a condition of its approval of a 75-lot residential subdivision.

RPAPL 1951 applies only to negative easements, not affirmative easements. In Gale v. Town of Wilton, 200 A.D.3d 1168, the court declined to extinguish an affirmative easement allowing the party to construct a walking trail because the easement was affirmative.

Although RPAPL 1951is inapplicable to affirmative easements, affirmative easements can be extinguished when the servient owner establishes the dominant owner's intention to abandon together with some clear act or failure to act which implies that the dominant owner claims or retains no interest in the easement. Nonuse alone is not sufficient. In Boerum Johnson, LLC v. Marte, 220 A.D.3d 636, the court held that when the dominant owner's predecessor erected a brick wall that blocked the easement, thus altering the exit to the facility onto the servient owners' property, the easement was extinguished by abandonment because there was both an intention to abandon the easement and an act signaling abandonment. However, in Gale v. Town of Wilton, 200 A.D.3d 1168, the court held that the servient owners failed to establish that the town abandoned the easement for a walking and recreational trail by failing to pursue the plan for a recreational trail. The court noted that the town had conditioned any development on surrounding land upon the existence of the easement.

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Doctrine of Emblements Might Sustain Former Tenant's Claim to Crops

Van Amburgh v. Boadle, 2024 WL 3707600, AppDiv, Third Dept. (Opinion by Pritzker, J; opinion concurring in part and dissenting in part by Aarons, J.)

In an action by agricultural tenant for breach of contract and conversion, tenant appealed from Supreme Court's dismissal of the complaint. The Appellate Division reversed and reinstated the complaint, holding that the doctrine of emblements might sustain tenant's claim.

The parties entered into a 5-year land lease agreement for the period between Jan. 1, 2016, and Jan. 1, 2021. The lease agreement involved "the use of agricultural land" and gave each party the right to terminate the lease on 90-days' notice. In fall 2019 tenants planted crops that allegedly could not be harvested until September 2020. On Feb. 1, 2020, landlord exercised its termination right and advised tenant that the lease would terminate on May 1. Landlord advised tenant to harvest the crops in the spring, but tenant responded that it could not meet that deadline because the crops would not be ready. After May 1, landlord sprayed the land with herbicide, killing the crops. Tenant then brought this action for breach of contract and conversion. Supreme Court dismissed the complaint, relying on the termination provision in the lease.

In reversing, the Appellate Division held that the doctrine of emblements provided tenant with a non-exclusive right to enter the premises to care for and harvest the crops planted before the termination. The complaint set forth a claim for breach of the implied covenant of good faith and fair dealing by alleging that landlord's exercise of the early termination provision without allowing tenant to re-enter to harvest the crops.

Justices Aarons and Egan agreed that the doctrine of emblements was sufficient to support a conversion claim but dissented from the majority's invocation of the implied covenant of good faith and fair dealing.

Comment

The doctrine of emblements allows tenants with leases for indefinite periods, particularly tenants at will, to harvest annual crops planted before receiving notice of lease termination. In Harris v. Frink, 49 N.Y. 24, the court reversed an order that had nonsuited a tenant's claim to recover possession of oats planted before receiving a termination notice. The tenant had agreed with the landlord to farm the land while awaiting the finalization of a sale. When the sale fell through, the landlord forcibly removed the tenant and harvested the crops. The Court of Appeals held that the tenant's arrangement to farm the land while awaiting the sale's completion constituted a tenancy at will and therefore the doctrine of emblements entitled the tenant to harvest crops planted before the landlord terminated the lease.

The doctrine only applies to annual crops, which must be replanted each year. In Triggs v. Kahn, 167 A.D.2d 680, the court affirmed a grant of summary judgment, dismissing the tenants' claim for possession because the crops in question were perennial, which continued to grow without needing to be replanted annually. The alfalfa-timothy crop is cultivated for a minimum of five years, which disqualifies it from protection under the doctrine. The court added that perennial crops are considered part of the land and, therefore, belong to the landlord. Furthermore, the doctrine does not apply if a tenant plants crops knowing when the lease will terminate. In Triggs, the court noted that even if the crops were annual, the doctrine wouldn't apply because the lease was for a definite year-to-year period, and the tenant was aware of the lease's expiration at the time of planting.

The doctrine of emblements does not apply if the tenant voluntarily terminates the lease or defaults, such as through non-payment of rent. In Samson v. Rose, 65 N.Y. 411, the court held that the tenant's claim for emblements failed because the tenant did not pay rent. The landlord had the legal right to disputed buckwheat because the tenant's failure to pay rent led landlord to obtain possession after the buckwheat had been sown but before it matured. Similarly, in Hetfield v. Lawton, 108 A.D. 113, the court affirmed dismissal of tenant's conversion claim because the tenant's notice to quit precluded any right to emblements. Although the tenant planted annual crops before giving the landlord notice-to-quit, the court held that the doctrine of emblements protects tenants from losing crops only due to unforeseen lease termination, but not when voluntary termination makes the event foreseeable.

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Church Property Tax Exempt Because Town Did Not Establish Zoning Violation

Matter of First United Methodist Church in Flushing v. Assessor, Town of Callicoon, 2024, WL3707351, AppDiv, Third Dept. (4-1 decision; majority opinion by Clark, J; dissenting opinion by Fisher, J.)

In landowner's proceeding to declare real property tax exempt, the town appealed from Supreme Court's grant, after a nonjury trial, of landowner's application. The Appellate Division affirmed, holding that the town had not established that landowner was using the property as a church in violation of the local zoning ordinance.

Landowner, a not-for-profit religious corporation, owns and operates a church in Queens, but bought the subject 70-acre parcel in Sullivan County and applied for a real estate tax exemption. The assessor and then the board of assessment review denied the application. Landowner then brought a proceeding challenging the tax assessment as unlawful. The town contended that even if landowner satisfied the requirements of the Real Property Tax Law exemption provisions, landowner was not entitled to an exemption because use of the property as a church violated the town's zoning law. After a nonjury trial, Supreme Court determined that landowner's use did not violate the ordinance and landowner, who otherwise met all of the requirements for entitlement to a religious exemption, was therefore entitled to the exemption. The town appealed.

In affirming, the Appellate Division majority started by concluding that the town had the burden of establishing that the landowner's use of the property violated the zoning code. The court noted, however, that Supreme Court had found that no regular or schedule church services were held at the property, although the congregation occasionally traveled to the property for overnight retreats that included bible study, prayers, and singing hymns. The court concluded that the town had not shown that the property was used to conduct organized religious services. As a result, landowner was entitled to the exemption.

Justice Fisher, dissenting, argued that the landowner should bear the burden of proof that landowner was not violating the ordinance, and also concluded that in any event, even if landowner was not operating a church, landowner's operation of a religious retreat center violated the zoning ordinance.