Court of Appeals #17

We recently published Court of Appeals #17.

Measure Twice. Buy Once. Never Sue.

Copyright by, and republished with permission of, Habitat Magazine.

It happens all the time in New York City. Someone buys an apartment relying, without further investigation, on statements made by a sales agent – and then learns, too late, that the statements were incorrect. According to a news report, it happened last year to a purchaser, who placed a $1 million down payment on a $10.5 million Chelsea condo after being told by the selling agent that the ceilings in the under-construction apartment would be “just shy of 10 feet tall” – high enough to accommodate her extensive art collection. However, when she later reviewed the offering plan and measured the finished apartment, she learned that the ceilings were not the anticipated height. She has had to sue to recover her down payment.

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IS THAT POSSESSION LEGALLY ADVERSE?

To establish a claim of title to real property by adverse possession, a party must demonstrate, by clear and convincing evidence, that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years.

Needless to say, each and every element of the formula has developed a unique and discrete body of law – pursuant to which a final disposition is, as often than not, fact-specific.  Several recent examples follow.

Mazzei v. Metropolitan Trans. Auth., 2018 NY Slip Op 06007, App. Div. 2nd Dept. (September 12, 2018) Continue reading