Real Property Actions and Proceedings Law section 541: the mind-buster busted.

• Author: Legg, Jason J.
• Position: New York

Jack and Jill, brother and sister and residents of New York State, acquired property as tenants in common through intestate succession. Jack immediately took possession of the property and built a home. Jill lived several hours from both the land and her brother. Although Jill occasionally saw Jack, they never discussed ownership of the land.

Fifteen years later, Jill decided to mortgage her half of the property in order to pay for her child's college education. When Jill approached Jack about this he laughed and explained that she no longer had an interest in the property. Several days later, Jill received a complaint alleging that Jack was the sole owner of the premises by virtue of his fifteen years of adverse possession. Distraught and confused, Jill contacted her lawyer. Unfortunately for Jill, her lawyer was equally confused about the applicable law and whether Jill had any interest in the land.

INTRODUCTION

In New York State, section 641 of the Real Property Actions and Proceedings Law (RPAPL) governs adverse possession between cotenants.(1) That section indicates:

Where the relation of tenants in common has existed between

any persons, the occupancy of one tenant, personally or by

his servant or by his tenant, is deemed to have been the

possession of the other, notwithstanding that the tenant so

occupying the premises has acquired another title or has

claimed to hold adversely to the other. But this presumption

shall cease after the expiration of ten years of continuous

exclusive occupancy by such tenant, personally or by his

servant or by his tenant, or immediately upon an ouster by

one tenant of the other and such occupying tenant may then

commence to hold adversely to his co-tenant.(2)

However, this statute is somewhat obscure.(3) It is unclear when the adverse possession period begins to run against a cotenant under section 541. Therefore, how long a cotenant must adversely hold the property is likewise uncertain. The statute presumes that possession by one cotenant is the possession of all cotenants.(4) However, section 541 also indicates that this presumption ceases after one tenant continuously and exclusively possesses the property for ten years.(5) Therefore, a question arises "whether a tenant in common in possession (who has not ousted his co-tenant who is not in possession) must possess for ten years or for twenty years before acquiring full title by adverse possession."(6)

New York appellate courts have not definitively answered this question and are split in their interpretation of the statute. The Third Department held that the statute does not increase the ten year statutory period.(7) However, the Second Department held that the statutory presumption created a twenty year holding period.(8) One commentator has indicated his hope that "one day the Legislature or the Court of Appeals will answer this long-standing question."(9)

Since neither the Legislature nor the Court of Appeals has, this Comment will answer the "long-standing" question. The first part of this Comment examines the two departments' differing interpretations of RPAPL section 541.(10) This Comment then reviews common law adverse possession between tenants in common and highlights the problems that the Legislature hoped to remedy by enacting RPAPL section 541.(11) To further understand RPAPL section 541, this Comment considers the legislative history and intent behind RPAPL section 541(12) and examines RPAPL section 531, which is similar to RPAPL section 541.(13) Then, to determine whether the lawyers or the courts erroneously interpreted the section, this Comment considers briefs presented to the different Departments in section 541 actions.(14) Further, this Comment considers the statutory and common law in other states to see if a common thread exists which might solve this specific problem in New York.(15) Finally, this Comment answers the "long-standing" question which surrounds this section and, therefore, busts the mind-buster.

1. CONFLICTING VIEWS OF ADVERSE POSSESSION BETWEEN COTENANTS

   The Second Department was the first New York appellate court to review RPAPL section 541 after its amendment in 1975. This court determined that the presumption did not cease until the end of the initial ten year period. In Kraker v. Roll,(16) Frederick Roll, Sr., died intestate in 1963.(17) He was survived by three children, Fred, Anna, and Lydia.(18) Because of their father's intestacy, the children inherited the property as tenants in common.(19) Anna and Fred continued to live on the property. Although Lydia lived elsewhere, she regularly visited the property.(20) In 1976 (thirteen years after the creation of the tenancy in common), Fred conveyed the property to Squirrel Hill Homes, Inc.(21) Lydia then brought suit against Anna, Fred, and Squirrel Hill Homes, Inc., to determine what interest Fred conveyed to Squirrel Hill Homes, Inc.(22)

   At issue was whether Fred conveyed only his one-third interest as a tenant in common or if he had acquired title by adverse possession such that he conveyed full title to Squirrel Hill Homes, Inc.(23) The Second Department first reiterated section 541's presumption that a tenant in common holds property for the benefits of all tenants in common and that such possession is in conformity with the rights of the other cotenants.(24) The court, considering Fred's adverse possession claim, then stated that the possession of a cotenant "becomes adverse on unmistakable repudiation of the owner's right by the possessor and notice thereof to the owner."(25) In the absence of oral or written words, the court indicated that such notice is presumed only where the cotenant's actions are so hostile or unequivocal that they unmistakably indicate to other cotenants that their title is being attacked.(26)

   In Kraker, Fred's only hostile acts were a series of expenditures for the maintenance of the property from 1963 to 1976.(27) The Second Department declared that such payment of expenses did not indicate to the other cotenants that Fred was attacking their title.(28) In fact, the court concluded that it was "perfectly reasonable to expect that a cotenant who is actually receiving the benefit of living on a property should be the one who foots the bill for reasonable expenditures associated with the property."(29) As a result, the Second Department held that there was no ouster and that the statute had not begun to run until the 1976 conveyance to Squirrel Hill Homes.(30)

   Kraker never directly addressed the problem of the ten year presumption in RPAPL section 541. In Kraker, the Second Department focused on the character of Fred's possession to determine that it did not give the other cotenants notice of an adverse claim of ownership.(31) In effect, the Second Department held that section 541's presumption exists until one of the two following things happens: (1) an ouster by the possessing cotenant; or (2) the expiration of the ten-year period. Because the court did not find any activities that would put a cotenant on notice and thereby constitute an ouster, the court could not hold that there had been adverse possession until the conveyance. Therefore, the court used RPAPL section 541 only for the presumption that a possessing tenant in common holds the property for the benefit of all cotenants.

   A few months after Kraker, the Second Department decided Kolb v. Anisis(32) which addressed the problem of the ten year presumption. In Kolb, a husband and wife acquired title to property in 1963.(33) In July, 1970, the defendant acquired title to the wife's portion of the property through a foreclosure sale, which created a tenancy in common between the defendant and the husband.(34) The couple remained in possession of the property and continued to collect rents and profits.(35) In 1982, the couple initiated an action to clear the defendant's interest from their title.(36) On these facts, the Second Department indicated:

   [A]ssuming that during that 10-year period [between 1970-1980]

   plaintiff [husband] had continuous exclusive occupancy,

   his possession of the premises was not adverse to defendant

   until 1980, 10 years after the relationship of a tenancy in

   common was created, unless defendant is found to have been

   ousted before that time. . . . Accordingly, plaintiffs' claim of

   adverse possession could not be properly asserted before 1990

   unless an ouster is established.(37)

   The Second Department concluded that adverse possession periods run consecutively(38) when there has been no ouster.(39) This means, absent ouster, that a cotenant adversely possessing against another cotenant had to possess the land for twenty years. Since the Second Department in Kolb determined that there was insufficient evidence to support an ouster, it concluded that the periods ran consecutively and that the couple had to possess the property for twenty years to establish adverse possession.(40)

   The Second Department, therefore, established the view that RPAPL section 541 requires, absent ouster, twenty years of exclusive and continuous possession by a cotenant against fellow cotenants. Considering the statute, its legislative history,(41) and the common law conceptions of cotenancy, adverse possession and ouster,(42) this interpretation seems reasonable.

   However, in 1990, the Third Department obscured this interpretation of section 541.(43) In Article Ten Properties, Ltd. v. Kocak,(44) the plaintiff acquired a half interest in the defendant's land by purchasing a tax deed dated October 3, 1974.(45) The defendant farmed, logged, rented, and improved the property for more than ten years, while the plaintiff's only contact with the property was the initial payment for the tax deed and one visit to the property.(46) In 1985, the plaintiff commenced an action for partition of the property.(47) Based on the nature of his possession, the defendant asserted the affirmative defense of adverse possession.(48)

   Refusing to follow the...