Myers v. Bartholomew

• Decision Date: 05 May 1998
• Citation: 91 N.Y.2d 630,697 N.E.2d 160,674 N.Y.S.2d 259
• Parties: , 697 N.E.2d 160, 1998 N.Y. Slip Op. 4309 Charles Alexander MYERS, Appellant, v. Thelma BARTHOLOMEW, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 259

674 N.Y.S.2d 259

91 N.Y.2d 630, 697 N.E.2d 160, 1998

N.Y. Slip Op. 4309

Charles Alexander MYERS, Appellant, v. Thelma BARTHOLOMEW, et al., Respondents.

Court of Appeals of New York.

May 5, 1998.

Sanders, Gutman & Brodie, P.C., Brooklyn (Robert Gutman and Deborah L. Dobbin, of counsel), for appellant.

Thelma Bartholomew, Winifred Bartholomew, Zina Ann Bartholomew and Tisa Celia Bartholomew, pro se.

OPINION OF THE COURT

KAYE, Chief Judge:

Must a tenant-in-common in exclusive possession (who has not ousted the nonpossessory cotenant), under RPAPL 541, possess for 10 years, or for 20 years, before acquiring full title by adverse possession? Describing RPAPL 541 as an "unclear statute" and a "perennial mind-buster," the Practice Commentaries speculate that perhaps one day the Court of Appeals will answer this long-standing question (Meehan, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 49 1/2, RPAPL 541, 1998 Cum. Ann. Pocket Part, at 37). That day has come: 20 years.

I.

In 1959, Aston Bartholomew and Julia Craft, as tenants-in-common, acquired title to a two-family residence on Bushwick Avenue in Brooklyn. From 1959 to 1974, they each occupied a portion of the ground floor unit, renting out the second apartment. When Julia Craft married plaintiff Charles Alexander Myers in 1974, she moved out of the apartment, leaving Aston Bartholomew as its sole occupant. Bartholomew continued to reside in the apartment until his death in 1979, when title to his undivided one-half interest in the house passed by intestacy to defendants--his wife, Thelma Bartholomew, and three daughters, Winifred, Zina Ann and Tisa Celia Bartholomew--as tenants-in-common.

Shortly after Aston Bartholomew's death, plaintiff and Julia Craft moved into the ground floor apartment of the Bushwick Avenue residence. They lived there together until Julia Craft died in January 1980. Upon her death, title to Craft's undivided one-half interest passed by intestacy to plaintiff as a tenant-in-common and he continued residing in the apartment. According to plaintiff, since Craft's death he has been in exclusive possession of the house, has paid all expenses associated with the house, including taxes, insurance and maintenance costs, and has collected rent from tenants who have occupied the second apartment.

In July 1993--more than 13 years after he assumed exclusive possession--plaintiff brought this action against defendants, seeking to establish his title by adverse possession. Supreme Court denied his unopposed motion for summary judgment on the ground that, under section 541 of the Real Property Actions and Proceedings Law, his claim of adverse possession required a period of 20 years of exclusive possession. The Appellate Division modified, awarding summary judgment to defendants on the same basis articulated by the trial court, and dismissed the complaint.

Given the undisputed fact that plaintiff has possessed the premises for less than 20 years, and no ouster is claimed, resolution of the law question determines this case. Like both courts before us, we conclude that, absent ouster, the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession, and we therefore affirm the Appellate Division order.

II.

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. Therein lies the danger: while a nonpossessory cotenant seemingly has nothing to fear from another cotenant's exclusive possession, such possession could conceivably form the basis of an adverse possession claim against the unsuspecting nonpossessory cotenant, who would have had no reason even to protest the purportedly adverse possession (Edwards v. Bishop, 4 N.Y. 61).

In New York, nonpossessory cotenants are protected from this inherent danger by a common-law rule that presumes a cotenant's possession is possession by and for the benefit of all other cotenants (Florence v. Hopkins, 46 N.Y. 182, 186). Because of this presumption, a tenant-in-common seeking to assert a successful claim of adverse possession is required to show more than mere possession; the cotenant must also commit acts constituting ouster (Culver v. Rhodes, 87 N.Y. 348, 353-355; Florence v. Hopkins, 46 N.Y. 182, 186, supra ). Although actual ouster usually requires a possessing cotenant to expressly communicate an intention to exclude or to deny the rights of cotenants, the common law also recognizes the existence of implied ouster in cases where the acts of the possessing cotenant are so openly hostile that the nonpossessing cotenants can be presumed to know that the property is being adversely possessed against them.

Determining when there has been an implied ouster can be a vexing task because cotenants have every right to use the property and any possession, even if exclusive, is presumed to be for all the tenants-in-common. Indeed, the question of when a court should imply an ouster is not easily resolved under the common law (see, e.g., Berger v. Horsfield, 188 App.Div. 649, 176 N.Y.S. 854; Hamershlag v. Duryea, 38 App.Div. 130, 56 N.Y.S. 615).

In an effort to address the difficulties inherent in the application of these common-law principles, the Legislature enacted Civil Practice Act § 41-a, later codified as RPAPL 541. The statute, which embodied the presumption of nonadverse possession, modified the rules for terminating that common-law presumption. In its present form, RPAPL 541 states:

"Where the relation of tenants in common has existed between any persons, the occupancy of one tenant, personally or by his servant or by his tenant, is deemed to have been the possession of the other notwithstanding that the tenant so occupying the premises has acquired another title or 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, personally or by his servant or by his tenant, or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his cotenant."

Although RPAPL 541 was intended to inject clarity into the common law by creating a firm statutory period after which the presumption of nonadverse possession would terminate, the statute has for many years divided courts and fueled debate among legal scholars. The primary complaint is that section 541 does not plainly indicate when the presumption of nonadverse possession ceases and the adverse possession period begins to run (see, e.g., Meehan, Practice Commentaries, op. cit., at 37; de Winter and Loeb, Supplementary Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 49 1/2, RPAPL 541, 1998 Cum. Ann Pocket Part, at 36-37; 13 Warren's Weed, New York Real Property, Tenants in Common, § 5.02 [4th ed.] ).

Some argue that the 10-year presumption specified in section 541 can be rebutted with a factual showing of adverse possession. Under this view, a cotenant's 10-year period of exclusive possession runs concurrently with the 10-year Statute of Limitations period applicable to adverse possession claims (see, e.g., Article Ten Props. v. Kocak, 164 A.D.2d 448, 564 N.Y.S.2d 558 [3d Dept.]; Porter v. Marx, 179 A.D.2d 962, 579 N.Y.S.2d 219 [3d Dept.] ).

Others contend that the presumption is irrebuttable: unless there is ouster, a cotenant's exclusive possession can be considered adverse only after the cotenant has been in exclusive possession for 10 years. Under this view, RPAPL 541 requires a cotenant to possess exclusively for two consecutive 10-year periods, or 20 years, before asserting a claim of adverse possession (see, e.g., Kolb v. Anisis, 104 A.D.2d 399, 478 N.Y.S.2d 720 [2d Dept.]; Perez v. Perez, 228 A.D.2d 161, 644 N.Y.S.2d 168 [1st Dept.], lv. dismissed 89 N.Y.2d 917, 653 N.Y.S.2d 920, 676 N.E.2d 502; see also, Palmer v. McCormick, 204 A.D.2d 522, 611 N.Y.S.2d 312 [2d Dept.]; Pravato v. M.E.F. Bldrs., 217 A.D.2d 654, 629 N.Y.S.2d 796 [2d Dept.]; see also, Comment, Real Property Actions and Proceedings Law Section 541: The Mind-Buster Busted, 59 Alb. L. Rev. 1485).

Given the language of the statute, particularly when read in light of its history, we conclude that the latter interpretation of RPAPL 541 is the right one. Absent ouster, a cotenant may begin to hold adversely only after 10 years of exclusive possession. RPAPL 541's statutory presumption, therefore, effectively requires 20 years--or two consecutive 10-year periods--of exclusive possession before a cotenant may be said to have adversely possessed a property owned by tenants-in-common.

Any doubt that this is the proper...