Opinion
No. 90955/10.
2011-02-7
Barbara Y. JOHNSON, Petitioner v. Von ROSS, “John Doe”, “Jane Doe”, Respondents.
CHERYL J. GONZALES, J.
In this holdover proceeding, petitioner seeks possession of the subject one family house based on the allegation that respondents are squatters. Petitioner served a ten-day notice to quit on August 26, 2010, which alleges that respondents entered into possession without petitioner's permission and demands that respondents vacate the premises on or before August 31, 2010. Respondents appeared pro se in this proceeding.
At trial, respondent Von Ross testified that he met petitioner around February 2008 during a period in which she was trying to complete a short sale on the subject property. Petitioner had already attempted to complete a short sale, but there was a problem with the paperwork. Respondent began assisting petitioner with the short sale, and at some point decided that he would be the purchaser in the short sale. Respondent testified that on or about January 12, 2009, petitioner signed a quit claim deed transferring her interest in the property to him as evidence of their agreement. Respondent claims that in January 2009, he made an agreement with petitioner to move into the property, and began doing repair work in the building. Mr. Ross also testified that petitioner visited him at the property on a few occasions and brought contractors for respondent to consider hiring to do the work. Respondent began renovation work in January 2009, and moved into the house in August 2009.
Petitioner submitted into evidence a certified copy of a recorded deed which reflects that the subject property was transferred to petitioner on February 7, 2007. Petitioner acknowledged that she executed the quit claim deed, but did not read what she was signing. Also, petitioner states that she believed that she was signing the property over to Gold Street Marketing Co., which is the company she hired to complete the short sale for her. Respondent is affiliated with Gold Street Marketing Co. Petitioner testified that respondent asked her to execute the deed because he wanted some evidence of his authority to enter the property, and petitioner complied with his request. Petitioner explained that the house was not occupied, and there had been problems with prior tenants. Petitioner asked her neighbors to call if they heard anything at the property. Petitioner's stated that her neighbor did call on one occasion after hearing activity in the house. In addition, petitioner claims that respondent first entered the property to place a security dog in the building.
Petitioner asserts that only her recorded deed can be considered as evidence of ownership of the property. Although the quit claim deed is unrecorded, it can validly transfer petitioner's interest in the property. Recording of the deed serves the function of giving notice to others of the property interest, and does not create an interest in the property. RPL § 291 provides that an unrecorded deed is void as against a subsequent purchaser, that is not applicable under the facts of this case. Pursuant to RPL § 244 a deed transfers the interest in property upon delivery (Buckley v. Chevron USA, Inc. 149 Misc.2d 476, 1991). However, neither party claimed that the quitclaim deed was intended to transfer an interest in the property. Respondent asserted it was evidence of an agreement between the parties, and both petitioner and respondent essentially claimed that the document was evidence of respondent's license to enter the property.
Under RPAPL § 713(3) a landlord may maintain a holdover proceeding to gain possession if the person has “intruded or squatted upon the property without the permission of the person entitled to possession and the occupancy has continued without permission or the permission has been revoked”. This assumes that squatter or intruder did not have a license to enter or occupy the property at the outset, whether or not permission was subsequently given to the intruder or squatter. These are not the facts in this case. Respondent cannot be a squatter or an intruder because respondent entered the property with a license from petitioner, (see Commissioner of Transportation v. Lane, 148 Misc.2d 320 [1990].)
The ten day notice only gave respondent five days notice from August 26 to August 31, 2010. Petitioner also failed to apprise respondents in the termination notice and the petition of the facts on which the proceeding is based pursuant to RPAPL § 741(4).
Based on the foregoing reasons, the petition is hereby dismissed.
his constitutes the decision and order of this court