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No Adverse Possession

If a spouse divorces and vacates a co-op apartment for more than 20 years, may the remaining former spouse acquire ownership of a jointly owned apartment by adverse possession? The answer was "no" in David v. Abramson where a court required a trial to determine if all of the elements of adverse possession had been met including the assertion of a hostile right.

In this action, plaintiff Lawrence David sought to be declared the sole owner of the co-op shares attributable to Apartment 14B at 870 Fifth Avenue in Manhattan. Defendant Irene Abramson counterclaimed for a partition of the property. Defendant 870 Fifth Avenue Corp., a co-op housing corporation, owned the building.

David moved for summary judgment and related relief. Abramson cross-moved for summary judgment and related relief and to be allowed to amend her answer to assert that she remained a joint tenant with David even after their divorce in 1979. The co-op did not submit any support for or opposition to either motion. For the reasons set forth below, the motion and cross-motion were both denied.

In May 1973, anticipating marriage, David and Abramson became joint tenants by purchasing the co-op shares for $86,000, with each having contributed about half the amount. They were married the next month. In April 1979, Abramson left the marital abode and moved to Florida. David claimed that he removed her possessions and changed the locks.

In August 1979, Abramson petitioned in Florida state court for divorce. The court issued a final judgment of divorce in October 1979. Shortly thereafter, Abramson married a resident of Florida. Meanwhile, David continued to reside in, maintain, and pay for the apartment. In 1986, he also remarried.

In April 2000, David began this action for a declaration of adverse possession. In June 2000, Abramson counterclaimed for a partition. The parties agreed that when they purchased the property they became joint tenants. David argued that, when the parties divorced, they became tenants-in-common. Abramson argued that, when the parties divorced, they remained joint tenants.

The first question that the court sought an answer for was "What happened when the parties got married?" According to a previously decided case, their tenancy remained a joint tenancy and did not convert to a tenancy by the entirety. Upon their divorce, it appears that the tenancy became a tenancy-in-common. The salient difference between, on the one hand, tenancies-in-common and, on the other hand, joint tenancies and tenancies by the entirety, is that a right of survivorship attaches to the latter but not the former. Here, the court said that neither party could reasonably have expected that a right of survivorship would exist after their divorce, physical separation, and respective remarriages. Thus, the court found that during the 1980s and 1990s, the parties owned the apartment as tenants-in-common.

RPAPL Section 541 provides as follows: "Where the relation of tenants in common has existed between any persons the occupancy of one deemed to have been the possession of the other, notwithstanding that the tenant so occupying the premises...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...and such occupying tenant may then commence to hold adversely to his co-tenant."

The court noted that the state's highest court had interpreted this action to provide that a non-ousting tenant-in-common must exclusively occupy property for a ten-year period before the ten year statute of limitations begins running, as codified in CPLR 212(a). In practical terms, a co-tenant must "adversely possess" for twenty years before acquiring adverse possession against a co-tenant who quits, as opposed to one who is ousted.

The court described what sort of possession is "adverse": "First, the possession must be hostile and under claim of right; second, it must be actual; third, it must be open and notorious; fourth, it must be exclusive; and fifth, it must be continuous." The doctrine of adverse possession applies to co-op apartments.

The court said that David's argument was straightforward: He claimed that the parties became tenants-in-common at their divorce in 1979 and that he had adversely possessed the property for 20 years thereafter. Clearly, his possession had been actual; open, notorious, exclusive, and continuous. The question was whether it had also been "hostile." The court noted that the general rule is that "when possession is permissive in its inception, adverse possession will not commence until there is a distinct assertion of a right hostile to the owner and brought home to him."

David relied on Fields v. Fields, for the proposition that "where the co-tenants are divorced spouses and the one spouse abandoned the marital home for 20 years, hostility is presumed and the 20-year statutory period for adverse possession runs from the date of the divorce." Indeed, Fields stated as follows:

"While plaintiff [i.e., the out-of-possession ex-spouse] asserts that the [other spouse's] possession of the property was not hostile, the [other spouse] need not show enmity or specific acts of hostility. Where...the use is open, notorious, and continuous for the full statutory period, a presumption of hostility arises, and plaintiff has not submitted any competent evidence to rebut this presumption."

Here, Abramson attempted to rebut the "presumption of hostility" by submitting evidence that for several years after the parties' divorce, and briefly prior to the instant litigation, she and David engaged in negotiations pursuant to which David would purchase Abramson's interest. If David was negotiating to purchase Abramson's interest, then, in the court's view, his possession would not have been "hostile," because it would have been acknowledgment that Abramson had an interest in the apartment. Abramson would not have been put on notice that possession was hostile; rather, she would have been lulled into assuming it was permissive.

The court concluded that the evidence of negotiations during the 20-years before this litigation was hardly overwhelming, but it was enough to raise an issue of fact and forestall summary judgment. "As repeatedly held, the remedy of summary judgment is a drastic one, which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable, since it serves to deprive a party of his day in court."

Abramson's attorney, Stephen Butter, sent David a letter dated June 20, 1979, stating that Butter understood that David would like to "settle the [Florida divorce] litigation," and that Butter understood that the "only two things involved in the case [are] the apartment and its contents." In a letter dated July 13, 1979, David's attorney, Michael Erdheim, responded that plaintiff had turned Butter's June 20 letter over to Erdheim and that he would be happy to discuss "an amicable resolution." In a letter dated August 27, 1979, Butter wrote Erdheim that, if the Florida court granted a divorce, Abramson could "always file [for a] partition in New York. However, I have suggested to her to leave the New York is and just let them increase in value." Of course, these letters (and some subsequent correspondence in the same vein) are all prior to the 20-year effective limitations period beginning June 29, 1980.

But, in a letter of October 23, 1980, Butter wrote Erdheim that he had telephoned and corresponded several times trying to settle the entire case and that the only remaining issues were the personal and real property. In a letter to Erdheim dated December 26, 1980, Butter referred to "pending settlement negotiations." In a letter dated June 9, 1981, Butter "wonder[ed] whether or not your client wants to continue negotiations."

In a letter dated September 1, 1981, Butter asked Erdheim whether he thought it was "time to settle this litigation [including] the real estate dispute." David questioned whether these letters were actually sent, but in the court's view that simply raised factual issues for the trial.

Any negotiations then lay fallow for 18 years. Abramson claimed that, in 1999, after a mutual friend interceded, Abramson spoke to David, who offered to purchase Abramson's interest in the apartment for $200,000. This alone was enough to defeat summary judgment, said the court because "an offer made by one in possession without title [here, plaintiff did not have sole title] to purchase from the record owner during the statutory period is a recognition of the record owner's title and prevents adverse possession from accruing."

Abramson contended, said David, that the early 1980 settlement negotiation letters "constitute a written agreement concerning disposition of the Apartment." All that Abramson contended was that the letters demonstrated an acknowledgment of Abramson's interest in the property. The plaintiff argued that Abramson's allegation that plaintiff offered $200,000 to Abramson was "under well-settled law...not admissible into evidence."

However, the court held that Abramson was submitting evidence of the offer not to show the value of the apartment, or to prove an interest therein; rather, she was submitting it to show an alleged acknowledgment that she had an interest. David also argued that evidence of discussions to resolve the issue at hand was "incredible." Credibility may not be determined on a motion for summary judgment. The court's function on a summary judgment motion is one of issue-finding not issue-determination.

Thus, the parties' respective requests for summary judgment were denied because there was an issue of fact as to whether plaintiff's possession was "hostile" for 20 years. Abramson's request to amend was denied because the decision found, as a matter of law, that the parties became tenants-in-common in 1979.

Comment: Adverse possession is often tough to prove. The law is careful to prevent changes in ownership of real estate to be based only on the concept of abandonment. Obtaining title to a co-op apartment by adverse possession is rare and difficult. It does not seem likely that the plaintiff in this case will prevail. However, the case will turn on all of the facts presented to a court for decision.

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