This was originally posted on the SGR Blog.
Can a TIC Oust Other TICs With the Passage of Time?
Scene set: Family members jointly own, as tenants-in-common, a residential property. Over time their respective interests pass to their descendants by deed or operation of law. But one of the family members allegedly occupied the property for more than ten years to the exclusion of her kinfolk. Did the successor to the sole occupier of the home obtain title by his predecessor’s adverse possession?
The 169 MLS Realty Corporation sued, among others, One 69 Skill Corporation seeking a judgment declaring that MLS was a tenant in common to an undivided 25% interest in a three-family dwelling located in Brooklyn and for partition of that property. Louis A. Angione, Peter Cutrone, Roberta Loranger, Teresa Louise Mizzo, Rebecca Rang, and Mildred Scala were granted leave to intervene in the action as plaintiffs. The intervenors alleged that they were heirs at law and tenants in common to the property, with a cumulative 43.75% interest, and also sought a partition of the property. Skill Corp asserted a counterclaim seeking a determination that its predecessor in interest, Lena Tedeschi, had acquired title to the property by adverse possession.
The intervenors moved for summary judgment dismissing Skill Corp’s counterclaim alleging adverse possession. The intervenors asserted that their common ancestor and predecessor in interest, Louisa Calamita, and her husband, Pietro Calamita, acquired title to the property by deed dated August 3, 1928; the property subsequently passed by operation of law to Louisa Calamita when Pietro Calamita predeceased her; and, upon Louisa Calamita’s death in 1937, the property passed by operation of law to Louisa Calamita’s four surviving children, Blanche Tedeschi, Armida Anginoni, Maria Calbo, and Sabino Anginoni. Blanche Tedeschi, who is the mother of Lena Tedeschi, died intestate in 1983. The intervenors further asserted that, subsequently, upon the respective deaths of Louisa Calamita’s four surviving children, the property passed by operation of law to each of their respective surviving heirs, including Lena Tedeschi and the intervenors, as tenants in common.
Supreme Court denied that branch of the motion which was for summary judgment dismissing Skill Corp’s adverse possession counterclaim. And the intervenors appealed.
Under the common law, tenants-in-common have long been afforded a measure of extra protection from adverse possession claims asserted by their cotenants. In a tenancy-in-common, each cotenant has an equal right to possess and enjoy all or any portion of the property as if the sole owner. Consequently, nonpossessory cotenants do not relinquish any of their rights as tenants-in-common when another cotenant assumes exclusive possession of the property.
In New York, nonpossessory cotenants are protected by a common-law rule that presumes a cotenant’s possession is possession by and for the benefit of all other cotenants. The common-law rule was codified in RPAPL 541. The statute, however, also limits the presumption by providing that it “shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, personally or by his [or her] servant or by his [or her] tenant, or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his [or her] cotenant”.
To establish a claim of adverse possession, the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period.
Here, the intervenors failed to demonstrate, prima facie, that Skill Corp’s predecessor in interest, Lena Tedeschi, did not acquire title to the property by adverse possession. It was not disputed that Lena Tedeschi inherited an interest in the property from her mother, Blanche Tedeschi, in 1983. The intervenors’ evidence demonstrated that it was their “understanding” that the interest in the property was shared with the entire family. The intervenors, however, did not establish that, prior to her transfer of the property to Skill Corp’s grantors, Lena Tedeschi was not in continuous, exclusive occupancy of the property for a period of 10 years such that the presumption of nonadverse possession had ceased, or that, thereafter, she was not in continuous, exclusive, hostile, and uninterrupted possession of the property for the relevant statutory period. The intervenors failed to make a prima facie showing of entitlement to judgment as a matter of law. So Supreme Court properly denied that branch of their motion which was for summary judgment dismissing Skill Corp’s adverse possession counterclaim.