Real Property Law

In an action to establish title by adverse possession, out-of-possession cotenant appealed from the Appellate Division’s affirmance of Supreme Court’s grant of summary judgment to the possessing cotenant. The Court of Appeals affirmed, holding that mutual mistake about the property’s ownership did not defeat the adverse possessor’s claim.

When the former owner of the property died intestate in 1992 she was survived by two brothers, Yale and Zangwill. Zangwill’s son, who believed Yale had predeceased the former owner, so advised Surrogate’s Court, and the court then determined that Zangwill was the former owner’s sole distribute. Zangwill then renounced his interest in favor of his son, who has maintained possession since that time, negotiating leases, collecting rent, paying taxes, and making substantial renovations. When he tried to sell the premises in 2018, a title search revealed that Yale had died in 1993, one year after the former owner, and therefore inherited half of the estate. Zangwill’s son then brought this action for a declaration that he had acquired title by adverse possession. Meanwhile, Yale’s estate had passed to his wife, then to his wife’s sister, then to the sister’s husband, and finally to a trust. The trustee of the trust counterclaimed for fraud and breach of fiduciary duty by Zangwill’s son. Supreme Court granted summary judgment to Zangwill’s son, and the trust appealed.