Opinion
219133.
Decided November 25, 2009.
Hiscock Barclay, LLP, Attorneys for Plaintiff, (Kevin P. Glasheen and Michael J. Smith, of counsel), Albany, NY.
Cooper Erving Savage LLP, Attorneys for Defendants, (Kimberly G. Finnigan and Brian W. Matula, of counsel), Albany, New York.
This is an action brought pursuant to Articles 6 and 15 of the Real Property Actions and Proceedings Law ("RPAPL"). At issue is title to real property on the east side of New York Route 4 in the Town of North Greenbush used by plaintiff as a right-of-way for its high-voltage power transmission lines and by defendants in connection with a farm and garden store. Following joinder of issue and the completion of discovery, both sides move for summary judgment, contending that the undisputed facts establish an entitlement to judgment as a matter of law in their favor.
BACKGROUND
In 1967, Leonora Chiaro purchased a 1.33 acre parcel of land along Route 4. In 1969, she deeded this property to her three sons, defendants in this action. Defendants developed the property as a farm and garden store. Defendant David Chiaro ("Chiaro") has operated the business as "Yonder Farms" continuously for nearly 40 years.
Since 1927, plaintiff Niagara Mohawk Power Corporation has owned a strip of land in the vicinity of defendants' parcel, along which run power transmission lines and under which run natural gas pipelines. In 1963 and 1964, plaintiff enlarged its real estate holdings in this area with the purchase of a 3.42 acre parcel to the south of defendants' land from David B. and Dorothy S. Phillips ("Phillips Parcel") and the purchase of a 2.27 acre parcel to the north and east from Frederick A. Jordan ("Jordan Parcel").
It appears that plaintiff allowed the Phillips and Jordan families to continue farming operations on their former holdings subsequent to these purchases. The Jordan deed contains a specific reservation of agricultural rights:
Reserving, however, unto the party of the first part, his heirs or assigns, the right to use said premises for agricultural purposes but not for the growing of trees, subject however, to the prior right of the party of the second part to use said premises in its business as a gas and electric corporation.
While no similar language appears in the Phillips deed, the record discloses that David B. Phillips, now deceased, did continue for many years to farm the land he had sold to plaintiff. Moreover, the record also shows that plaintiff has, as a matter of policy, encouraged the continued cultivation of lands along its rights-of-way in order to prevent the growth of trees and other potential obstructions to overhead power lines.
Over the years, as Yonder Farms prospered, defendants sought to improve their business premises. In 1972, for example, Chiaro submitted an application to the local Zoning Board of Appeals for a variance to allow construction of a cold storage and packing facility closer to the edge of defendants' property than allowed by the local zoning ordinance. The application gave the size of defendants' parcel as 1.3 acres and listed plaintiff's "power right-of-way" and the Phillips' farm as two of three "abutters." Chiaro also included with his application a map depicting defendants' property and showing it as bordering "Lands of Niagara Mohawk Power Corp" and "Lands Formerly of David Phillips." In addition, the application contains a letter from one of plaintiff's supervisors, stating: "In accordance with the request of Yonder Farms, Niagara Mohawk has no objection if they proceed to construct additions to their buildings within the 25 foot restriction at the rear of their property adjacent to the electric transmission line right of way."
The requested variance was granted.
In or about 1980, Chiaro entered into a written lease agreement with David Phillips. This agreement purported to allow Chiaro to occupy land abutting defendant's property and authorized the construction of greenhouses, which Chiaro agreed to remove at the expiration of the lease term. The lease was for a fixed term of ten years, with a ten year renewal option. The base rent was set at $1,000.00 per year, subject to a cost-of-living adjustment.
The last sentence of the lease states that "[t]he restrictions of the previous lease are to be continued." The record is unclear as to the particulars of this earlier lease.
Later in 1980, Chiaro submitted another application on defendants' behalf for a variance to the Zoning Board of Appeals. This request was for permission to construct a number of greenhouses on the land purportedly rented from David Phillips. In connection with this application, Chiaro submitted a hand-drawn sketch of the premises. This sketch showed defendants' parcel and the adjoining property labeled as "(14 Acres) Lands of David Phillip [sic] (Leased to Yonder Farms)" (parentheses in original). This variance was also granted.
By the mid-1980s, however, Chiaro learned that David B. Phillips did not have legal title to the land covered by the 1980 lease agreement, having previously conveyed such property to plaintiff. Nevertheless, over the years, defendants filled and leveled portions of this land, built numerous greenhouses and other structures on it, installed an underground fuel oil storage tank and, for a time, planted strawberries on it. At one point in the 1980s, Chiaro sought permission from plaintiff to construct an irrigation pond under plaintiff's power transmission lines. One of plaintiff's employees rebuffed this request, aptly noting that "electricity and water don't mix."
As time passed, defendants continued to expand their business and improve the property. Applications for building permits and area variances submitted after the mid-1980s ceased to mention the Phillips lease. While the maps and sketches provided with these applications depicted lot lines conforming to the original deed description, greenhouses, plantings and other improvements were shown beyond these boundaries without any notation regarding the ownership of the land, though plaintiff was still listed on the applications as the abutting landowner to the right and rear of defendants' parcel. By the late 1990s defendants' encroachments onto plaintiff's property reached its maximum, with at least one greenhouse built directly beneath a high-voltage power transmission line.
In 2000, plaintiff became involved in planning for a major upgrade of its power generation, transmission and distribution system in the area. Part of the project involved the installation of extremely high voltage (345,000 volt) transmission lines along the right-of-way bordering on defendants' land. Plaintiff's safety policy required that an area 80 feet to either side of such high voltage lines be kept clear.
As early as 2002, plaintiff's agents approached defendants to discuss the removal of four greenhouses that had been placed within the 80-foot clear zone. For several years defendants resisted taking any action. In 2005, plaintiff insisted on a firm timetable for the removal of the greenhouses. Defendants refused. This litigation followed.
Plaintiff seeks in its complaint: a declaration, under Article 6 of the RPAPL that it is the fee owner of the disputed property; damages for defendants' use of the property since March 2005; a determination under RPAPL § 1501 of defendants' claims to the property; ejectment of defendants; damages from defendants for their trespass; damages from defendants for their unjust enrichment; and a permanent injunction against defendants against future encroachments or trespass. Defendants counterclaim for declaratory relief determining that defendants are the owners in fee of the disputed parcel and injunctive relief against plaintiff. Following joinder of issue and the completion of discovery, both sides move for summary judgment.
An earlier motion for partial summary judgment resulted in an order on consent dated December 10, 2007 directing defendants to remove three greenhouses that had been erected less than ten years prior to the commencement of this action. Defendants removed these greenhouses in the spring of 2008.
ANALYSIS
The parties agree that defendants have no interest in the disputed property arising out of a deed or judgment. And there is no dispute that plaintiff alone holds record title to the property. Therefore, defendants' claims are grounded solely on adverse possession, with RPAPL § 521 as the controlling statute.
The Court notes that a 2008 amendment to this statute (L 2008 ch 269) is inapplicable to this action, as this matter was commenced prior to the amendment's effective date.
Title to real property is acquired through adverse possession only where the claimant can establish, by clear and convincing evidence, that the possession was "hostile and under claim of right, actual, open and notorious, exclusive and continuous for ten years" ( Birkholz v Wells, 272 AD2d 665, 666 [3d Dept 2000], citing Brand v Prince, 35 NY2d 634, 636). Adverse possession long has been disfavored as a means of acquiring title ( see e.g. Heller v Cohen, 154 NY 299, 311; Joseph v Whitcombe, 279 AD2d 122 [1st Dept 2001]). Accordingly, the failure of proof on any one of the five essential elements will result in a finding against the alleged adverse possessor ( see Whitcombe, supra, at 125).
In the present case, it is the requirement that the possession be "hostile and under a claim of right" that most seriously is in issue. The term "hostile" does not, of course, imply actual enmity or hostile acts ( Birkholz, supra, at 667, citing Sinicropi v Town of Indian Lake, 148 AD2d 799, 800 [3d Dept 1989]). Rather, hostility means an actual invasion of or infringement on an owner's rights ( id.). Where the proof demonstrates an open, notorious, continuous use for at least ten years, hostility may be presumed ( id., citing Belotti v Bickhardt, 228 NY 296 and Wildove v Papa, 223 AD 211, 215 [3d Dept 1928]). Yet hostility alone is insufficient to satisfy this element: the initial entry onto the property must be shown to have been made under a claim of right ( Whitcombe, supra, at 126-127).
The record in this case clearly shows that defendants did not enter the disputed property under a claim of right. As early as 1972, a mere three years after taking title to their deeded parcel, defendants acknowledged in their submissions to the Zoning Board of Appeals that the land outside their 1.33 acre parcel belonged either to plaintiff or to Phillips. Subsequent submissions to local government officials made by or on behalf of defendants in connection with applications for zoning variances, planning board approvals and building permits continued to acknowledge that title to the disputed property was vested in another.
Moreover, defendants' entry onto much of the disputed property did not occur until after the execution of the lease agreement with Phillips. While that agreement may have been unenforceable, insofar as at the time of its execution Phillips no longer held title to the land, it is a document whose execution by Chiaro is an ineluctable acknowledgment by him that he did not claim any right of ownership in the property.
There is some suggestion in the record that the "Main Garden Center," which encroaches onto a small portion of plaintiff's land previously deeded to plaintiff by Jordan, was built and expanded as early as the 1970s.
Likewise, defendants' actions in seeking permission from plaintiff to construct an irrigation pond under the power transmission lines provides another overt acknowledgment of plaintiff's superior rights to the property and demonstrates that defendants' entry onto the property was not made under a claim of right.
To be sure, the issue is not defendants' knowledge that legal title to the disputed property was vested in plaintiff. It is by now clear, at least under the law in effect at the time that this action was commenced, that a "possessor's knowledge of the invalidity of his or her claim of title is immaterial ( Walling v Przybylo , 24 AD3d 1, 4 [3d Dept 2005], aff'd 7 NY3d 228). "However, the possessor's overt acknowledgment that another holds title, prior to the running of the statutory period, will defeat a claim of adverse possession" ( id. [collecting authorities]). The issue of one of conduct, not subjective knowledge ( 7 NY3d at 232-233). Here, defendants' conduct, both upon their initial entry onto the land and continuing through the statutory period, is replete with overt acknowledgments that title to the Jordan and Phillips parcels are vested in another, thus defeating their claim of adverse possession ( see Larsen v Hanson, 58 AD3d 1003 [3d Dept 2009]).
Pursuant to Chapter 269 of the Laws of 2008, a "claim of right" is now defined in statute as "a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be" (codified at RPAPL § 501 [3]).
In view of the absence of a claim of right, defendants' reliance on United Pickle Prods. Corp. v Prayer Temple Community Church ( 43 AD3d 307 [1st Dept 2007) is unavailing. While that Court correctly recognized that permission to use land given by persons other than the owner does not negate the element of hostility ( id. at. 309; see also Led Duke v Sommer, 205 AD2d 1009 [3d Dept 1994]), the First Department's decision expressly found that plaintiff entered the land under a claim of right ( id. at 309).
In the absence of a claim of right — even one made in bad faith, as in the Walling case — mere "occupancy for an extended period of years coupled with open conduct consistent with ownership . . .' may not ripen into ownership by adverse possession" ( All the Way E. Fourth St. Block Assn. v Ryan-NENA Community Health Ctr. , 30 AD3d 182 [1st Dept 2006], quoting Joseph, 279 AD2d at 124). Thus, for example, in Joseph v Whitcombe, supra, a couple had moved into a vacant house, cleared years of overgrowth of weeds from the property and invested considerable money and "sweat equity" into various improvements during seventeen years of continuous and undisturbed occupancy of the premises. When the successor in interest to the titled owner sought to eject the defendants, they counterclaimed seeking a declaration that they had established ownership by adverse possession. The First Department held that the defendants had failed to establish that their entry onto the premises had occurred under a claim of right.
Tracing the development of the common law doctrine of adverse possession and adding the legislative gloss provided by the RPAPL, the Court noted that the purpose of the doctrine "was stability and regularity, rather than rewarding unlawful possession" ( id. at 125). The Court's ultimate conclusion is instructive for the present case:
Notwithstanding defendants' subjective intent to retain possession adversely as owners, they entered merely as expectant licensees, whose expectations had no objective basis in fact, and their subsequent possession does not even rise to the level of license. Never having had possessory rights, they may not now enjoy ownership rights. ( 279 AD2d at 127).
Of course, unlike the defendants in Whitcombe, defendants here entered at least some portion of the property not as squatters, but as the leasehold tenants of Phillips. Yet defendants do not contend that this apparent leasehold interest supports their claim of adverse possession. In fact, the lease only makes defendants' claim of adverse possession more tenuous, since there is appellate authority holding that a person who leases property to another without title to such property may be deemed an adverse possessor ( see Eller Media Comp. v Bruckner Outdoor Signs, 299 Ad2d 166 [1st Dept 2002]). In such a case, the lessor's actions in leasing the land can satisfy certain elements of RPAPL § 521, such as entry under a claim of right, with the tenant's conduct used to supply other necessary elements, such as the open, notorious and exclusive possession of the land ( see id.; see also RPAPL § 531 [possession of the tenant is deemed the possession of the landlord]).
And RPAPL § 531 forecloses any contention on the part of defendants that their alleged adverse possession of the property extinguished any prescriptive rights previously acquired by the Phillips (or their successors in interest). That statute creates a ten-year "dormancy" period after the end of a lease term before adverse possession by a tenant against a landlord would even be deemed to begin ( see id.; Bradt v Giovannone, 35 AD2d 322 [3d Dept 1970]). As the term of the Phillips lease expired at the end of 1989, defendants' possession could not be been deemed adverse to Phillips until the end of 1999. Accordingly, any ripening of title by adverse possession could not be claimed by defendants until January 1, 2010, long after the commencement of the instant action ( see Gallea v Hess Realty Corp., 128 AD2d 274, 277 [4th Dept 1987]).
Thus, if defendants could demonstrate a viable claim of adverse possession against plaintiff, which they cannot, the Court would be inclined to require the joinder of the Phillips or their successors in interest pursuant to RPAPL § 1511 (2), which provides: "Where it appears to the court that a person not a party to the action may have an estate or interest in the real property which may in any manner be affected by the judgment, the court, upon application of such person, or of any party to the action, or on its own motion, may direct that such person be made a party" (emphasis supplied). Further, since Jordan (or his successor in interest) retained the right to use the disputed land for "agricultural purposes," a viable claim of adverse possession by defendants against plaintiff may implicate a remaining interest of Jordan in the land.
CONCLUSION
The undisputed factual record demonstrates that defendants cannot establish by clear and convincing evidence that they entered upon the Phillips and Jordan parcels under a claim of right. Given the absence of this essential element of their adverse possession claim, their motion for summary judgment must be denied and their counter-claim for adverse possession dismissed. Further, plaintiff is entitled to summary judgment on its claim that it is the fee owner of the Jordan Parcel and the Phillips Parcel, subject to any rights that the grantors of such parcels or their successors in interest may have.
Given that the Court is not requiring the joinder of Phillips and Jordan (or their successors), the Court declines to determine the rights of plaintiff to the land vis a vis its predecessors in interest.
The Court has considered the parties' remaining contentions, but finds them unavailing or unnecessary to disposition of the present applications.
ORDERED that defendants' motion for summary judgment is denied; and it is further
ORDERED that plaintiff's motion for summary judgment is granted; and it is further
ADJUDGED that plaintiff is the fee owner of the Jordan Parcel and the Phillips Parcel, subject to any rights that the grantors of such parcels or their successors in interest may have;
ORDERED that counsel shall meet and confer regarding further proceedings in this action, including any outstanding requires for relief, and shall request a conference with the Court thereafter.
This constitutes the Decision Order of the Court. The original Decision Order is being returned to counsel for plaintiff; all other papers are being transmitted to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220, and counsel is not relieved from the applicable provisions of that Rule.
Affidavit of Sean K. Glasheen, sworn to January 16, 2009;
Affidavit of Rodney D. Michael, sworn to January 30, 2009, with attached exhibits A-H;
Affidavit of David Chiaro, sworn to February 3, 2009, with attached exhibits A-S;
Notice of Cross-Motion, dated February 4, 2009;
Affidavit of Brian W. Matula, Esq., sworn to February 4, 2009, with attached exhibits A-B;
Affidavit of Lauren A. Mastin, sworn to February 27, 2009;
Affidavit of Joseph R. Kryzak, sworn to March 3, 2009;
Affidavit of Kevin P. Glasheen, Esq., sworn to March 4, 2009;
Affidavit of Kevin P. Glasheen, Esq., sworn to November 12, 2009, with attached exhibits 49-54;
Plaintiff's exhibits 1-40;
Plaintiff's supplemental exhibits 41-48.