Scott E. Mollen
Scott E. Mollen ()

Adverse Possession Claim Upheld—Private Street—Practical Location Doctrine—Contested Area Was Not a “Paper Street,” Because It Was Open and in Use

The plaintiff residential cooperative corporation commenced the subject action, asserting an adverse possession claim, pursuant to Real Property Action and Proceedings Law (RPAPL), Article 15. The plaintiff claimed, inter alia, that “it is the owner and has exclusive right to use the southwesterly portion of” a strip of property known as “Centre Place, from the center line thereof, subject to the easement rights of abutting property owners.” The plaintiff also sought “to expunge various correction deeds filed by defendant that include the ownership of Centre Place” and “an order directing defendant to remove the fence it erected and restore the sidewalk to its previous condition….” The defendant denied the plaintiff’s claims and asserted counterclaims for a declaratory judgment and monetary damages.

The plaintiff’s buildings had been built in 1963 and converted into a private cooperative in 1989. The plaintiff and its predecessor in interest (plaintiff), utilized “a strip of real property located on the southwesterly portion of Centre Place (the contested property),… as a private small parking lot for its tenants.” The small parking lot contains 15 parking spaces. The plaintiff “accesses the small parking lot by way of a curb cut….”

The defendant owns property that abuts Centre Place. The defendant had acquired title in 2005, had built a fence and began parking his vehicle on Centre Place. On March 15, 2006, the defendant advised the plaintiff that it owned all of the contested property and “demanded that plaintiff stop parking cars in the small parking lot.” In 2007, the defendant erected a gate to prevent the plaintiff’s tenants from utilizing the small parking lot. The police intervened and directed the defendant to leave the gate open while the parties sought judicial relief.

In May 2007, the defendant executed a correction deed to itself “amending the legal description” to include ownership of half of Centre Place to the center line. The defendant then moved to dismiss the complaint and for summary judgment on its counterclaims. The plaintiff sought a preliminary injunction enjoining the defendant from interfering with the plaintiff’s exclusive use of the small parking lot.

A trial court previously found that the defendant was entitled to summary judgment on the issue of ownership of the contested property. However, it denied the defendant’s motion for summary judgment, holding that there were issues of fact as to the plaintiff’s claim for adverse possession and granted the plaintiff’s request for a preliminary injunction. The defendant had executed a second correction deed to itself changing a legal description to include the entire length of Centre Place from 26th Avenue to Stillwell Street.

Thereafter, the plaintiff moved for summary judgment on its claim of adverse possession and to dismiss the defendant’s counterclaims. The defendant argued, inter alia, that there was an “unbroken chain of title” that “extended to the original subdivision map and that those deeds convey right, title and interest to the whole of Centre Place to defendant.”

A former president of the plaintiff (“A”), testified that the small parking lot has “been exclusively used as a parking lot for the rental of parking spaces to tenant shareholders” since 1989. “A” further testified that the public was never permitted to park in the small parking lot and “the usage by tenant shareholders is open and obvious.” “A” also testified that Centre Place had been “paved on one side and unpaved on the other side” and “the paved portion of Centre Place ha[d] lines delineating fifteen (15) parking spaces.” He also stated that the plaintiff’s maintenance staff removed snow from and repaired potholes on, the small parking lot. “A” believed that the board never requested permission from the defendant’s predecessor to park cars on the small parking lot. “A” claimed that such permission was not necessary since the predecessor did not own that part of Centre Place. “A” stated that the plaintiff’s board did not have “a friendly relationship” with the defendant’s predecessor and the plaintiff had never received an objection regarding its use of the small parking lot. He further testified that the defendant had installed a fence blocking the entrance to the small parking lot, on Rosh Hashanah, and that the board had not received any communication from the defendant before such installation.

There were no records documenting the plaintiff’s maintenance of the small parking lot between 1989 and 2013 and the existing certificate of occupancy did not include all of the parking spaces used by the plaintiff. The entrance to the small parking lot was not gated, was openly accessible and the plaintiff did not erect any signs identifying the paved area on Centre Place as a parking lot. The large parking lot was gated and access was obtained by a clicker that opened and closed the gate.

Another plaintiff witness (“B”) testified that the plaintiff had done the paving on Centre Place, had placed markings for parking spaces, had built a fence that segregated the small parking lot from the large parking lot and that the fenced in area was not open to the general public. The fence was maintained by the plaintiff and security guards made sure that the premises within the fenced boundaries were for the exclusive use of the tenants. “B” also testified that plaintiff’s use of Centre Place was not permissive and the subject parties never had a friendly relationship.

A third witness for the plaintiff (“C”) testified that the “plaintiff maintained the small parking lot and that “stickers would be put on the car windows of people who parked in spaces without a lease.” He asserted that use of the small parking lot had been “continuous,” the “principals of [defendant's predecessor], were aware of the rental of the parking spaces and did not object to such use” and the plaintiff never concealed the fact that they were renting the subject parking spaces to their tenant shareholders.

The plaintiff also called an expert witness (“D”) who testified that Centre Street was “a private street.” “D” testified that Centre Place was “not a paper street because it is open and in use.” A “‘paper street’ refers to property or lots sold pursuant to a proposed subdivision map, which are depicted on paper but not open and in use.” “D” noted that the defendant’s rights to Centre Place were limited to one-half of Centre Place, based on the metes and bounds description of the defendant’s lots. He also testified that “the practical location doctrine deems the boundaries on Centre Place to be the centerline as used by the parties.”

“D” asserted that “the practical location doctrine creates a practical boundary based on the acquiescence of the parties for the statutory period and is deemed to be the actual boundary line of the property regardless of what the calls [or statements] are in the particular deeds to the properties of the parties.” Citing, inter alia, the subject deeds and “the historical course of dealings of the property owners abutting the contested property….,” “D” concluded that since Centre Place is a private street, the contested property “is subject to adverse possession.”

A defense witness testified, inter alia, that “Centre Place … is a filed map street,” and “abutting land owners and possibly the general public have easement rights to Centre Place.” The defendant claimed that his predecessor had “permitted plaintiff to park on the small parking lot.” However, “he knew of no written instrument from his predecessor in interest, …, granting permission to the plaintiff to utilize a portion of Centre Place for parking nor, was he aware of any conversations between [his predecessor] and plaintiff.”

The defendant called an attorney and land title expert in support of its counterclaims for a declaratory judgment and monetary damages.

The court explained that “a street becomes a public street by dedication or use….” There was no evidence that “Centre Place was dedicated for public use or used by the public. Although the historical maps and various tax maps show Centre Place as a mapped street, these maps are insufficient to support a finding that Centre Place is a public street.” The court found that the defendant’s experts’ testimony was “unsupported by the evidence and simply incredible.” Based on the totality of the evidence, the court concluded that Centre Place “is a private, mapped street” and “not a paper street.” The court also found that the plaintiff held no ownership interest in Centre Place by deed and did not have an ownership interest in Centre Place based on a subdivision map in its chain of title was “meritless.”

The court explained that “grantees of lots abutting a street on a filed map are entitled to have the land so demarcated remain as a street forever, absent their abandonment, conveyance, condemnation, or adverse possession.” To establish a claim for adverse possession, the occupation of the property must be “hostile and under a claim of right,” “actual,” “open and notorious,” “exclusive,” and “continuous for the statutory period (at least 10 years)….” In 2008, the subject RPAPL provision was amended. Since this action was commenced in 2007, the plaintiff’s claim was governed by the prior statute.

“The ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period….” To establish hostility, a claimant must show that “the possession constitutes an actual … infringement upon, the owner’s rights….” Thus, “hostility may be found even though the possession occurred inadvertently or by mistake….” Further, “”hostility will be presumed if the use is open, notorious and continuous for the full 10-year statutory period’….”

Courts have noted that “‘[h]ostility is negated by ‘[s]eeking permission for use from the record owner’….” and “where there is a close and cooperative relationship between the record owner and the person claiming title through adverse possession, the presumption of hostility may not apply….” Moreover, “the adverse possessor’s belief with regard to ownership of contested property is not relevant to a determination of the issue.” The court rejected the defendant’s argument that the plaintiff could not have acquired title to the contested property “because it knew that its predecessor in interest did not acquire such title….”

The court found that the evidence “established that for almost four decades plaintiff has been openly, notoriously, and continuously utilizing the small parking lot.” The court held that use of the contested property was “hostile to defendant’s rights,” since the evidence established that plaintiff was never “granted the right to use this area from defendant or its predecessors in interest.”

The court noted that “Centre Place had been unpaved and unimproved through 1978, when it was paved” and the plaintiff had “regularly maintained the small parking lot by removing garbage, conducting snow removal, and re-painting the lines marked for parking spaces.” The court held that the plaintiff had “usually cultivated or improved the contested property.”

The “open and notorious” element “requires that the possession be sufficiently visible such that a casual inspection by the owner of the property would reveal the adverse possessor’s occupation and use thereof.” Although the defendant asserted that the plaintiff had “no signage or fencing which identified the contested property as a parking lot,” the evidence established “that anyone observing the paved area would see cars parked in the marked spaces and be aware that the property was being used as a parking lot.”

The “exclusivity” element requires that the party claiming title by adverse possession must have exercised exclusive possession and control of the property.” “Allowing others to use the property does not necessarily negate ‘exclusivity.’” Courts have held that “[w]hen the party claiming adverse possession permits others to use the property, exclusivity exists where the claimant’s use of the property is ‘separate and exclusive from the general use,’ i.e., claimant’s use is not dependent on the right of others to do so]).”

Here, the plaintiff had rented parking spaces in the small parking lot since at least the 1980′s and witnesses testified that “the public was not allowed to park in the small parking lot.” The court’s conclusion was not changed by the defendant’s testimony that “he had parked in the lot from time to time without consequence.” The court also held that the statutory period did not commence when the defendant had demanded that the plaintiff “remove the obstruction of the easement on March 15, 2006….” Rather, the “statutory period began to run when the small parking lot was paved in 1978.”

The defendant had cited precedent that held that “‘paper’ easements may not be extinguished by adverse possession absent a demand by the owner that the easement be opened and a refusal by the party in alleged adverse possession….” Paper easements are “not definitively located and developed through use, ‘are not yet in functional existence and therefore the owner of the easement could not be expected to have notice of the adverse claim until either the easement is opened or the owner demands that it be opened.’” It is only at such point, that “the use of the easement by another is deemed to be adverse to the owner and the prescriptive period begins to run.” The contested property had been used by the plaintiff “as the small parking lot since at least the 1980s.” The easement had been opened “since at least the time that it was paved,” and therefore, the paper easement precedent is inapplicable.

The court concluded that the plaintiff established “the elements of adverse possession by clear and convincing evidence” and that even if Centre Place was “a paper street or paper easement,” the plaintiff could establish a right to title by adverse possession. The court explained that “where the legal right at issue is that of a lot owner to use a filed map street, non-use alone cannot extinguish the easement; the possession can only become adverse when the occupier proves that his affirmative acts of possessory ownership were known to all of the lot owners at times when each had occasion to assert a right to the use of the servient tenement….” The court found that the plaintiff had met by “continuous” and “open usage.”

The court then addressed “the practical location doctrine” and explained that “[a] practical location of a boundary line and an acquiescence therein for more than the statutory period is conclusive of the location of such boundary … although such line may not in fact be the true line according to the calls of the deeds of the adjoining owners….” Such doctrine applies when there is “a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is ‘definitely and equally known, understood and settled.’”

The court found that the property owners abutting Centre Place had “recognized the centerline of Centre Place as their boundary line” and such conclusion was supported by the fact that parties to a related easement “believed that the boundary line for the property that each held was the center line of the street.” The court rejected the defendant’s argument that a fence should have been placed in the center of Centre Place if the plaintiff really believed that that was the boundary of the property.

Cars in both the small parking lot and the large parking lot parked adjacent to the fence and if another fence had been built along the center of Centre Place, there would have been “no access to the parking spaces in the small parking lot.” There was testimony that the plaintiff believed that the boundary line was the place where the paved small parking lot meets the grassy area. Thus, the court held that the plaintiff had also acquired title to the contested property, pursuant to the “practical location doctrine.”

Accordingly, the court held that the plaintiff is the owner of the small parking lot pursuant to the doctrines of adverse possession and practical location, the correction deeds filed by the defendant should be expunged and the defendant should remove the fence that it had erected and restore the sidewalk to its prior condition. The court also held that the defendant held no ownership interest or easement rights of any kind in Stillwell Street.

Comment: Bruce H. Lederman of D’Agostino, Levine, Landesman & Lederman, attorneys for the plaintiff, stated that “[i]t is fascinating to see that there are still private streets in the City of New York, which people treat as their own property for parking and at the same time ownership can be disputed.” Mr. Lederman noted that “parking is a very valuable commodity in many areas of Brooklyn.”

Linda S. Agnew of Jaspan Schlesinger attorneys for the defendant stated “[w]e respectfully disagree with the court’s decision and my client is pursuing an appeal.”

Adverse possession decisions are of interest, because these types of claims may cloud title and thereby impede a financing, sale or lease of property. They are also “challenging” cases, since they often involve questions of fact as to how a property was used and maintained over a 10-year period. Evidence will usually include eyewitness testimony and personal recollections about conduct that could go back decades. Many times, potential witnesses are unavailable. Some adverse possession claims will be defeated by documents that demonstrate that the use by the claimant was permissive and not hostile.

Waterview Towers v. 2610 Cropsey Development, 11719/2007, NYLJ 1202774774036, at *1 (Sup., KI, Decided Oct. 31, 2016), King, J.