Printer Friendly

Property improvements go with land.

It is well-known among real estate owners that permanent improvements to property made by a tenant belong to the landlord. This is true also with respect to the sale of real property. Improvements permanently attached to the real estate become part of the real estate and are included in the sale of the property. This principal is called "accession."

The doctrine of accession was the basis of a case involving the construction of a house on the wrong property.

Andrew Kraft purchased a parcel of unimproved land in Niagara County, NY. Kraft had spent many years looking for property which met his specific requirements of a heavily-wooded lot with significant depth so that a house could be constructed some distance from the road. Lots 5 and 6 met his needs, and he purchased them.

Shortly after Kraft purchased lots 5 and 6, Todd Brazauskas purchased lot number 7, which adjoined Kraft's parcel. Brazauskas met with Peter DeAngelo, a builder, and showed the builder the survey stakes which he understood to be the boundary lines for his property. In fact, the stakes were the boundary lines of the Kraft's lots 5 and 6. DeAngelo commenced construction of a house for Brazauskas on Kraft's property. Kraft knew nothing about this.

Later that year, after the residence was nearly completed, a surveyor hired by Brazauskas informed DeAngelo that the house was being constructed on Kraft's property. DeAngelo immediately advised Kraft of the mistaken improvement to his property. Kraft responded by insisting that DeAngelo, the builder and Brazauskas remove themselves from his property and leave the house standing where it was.

A lawsuit was commenced by DeAngelo against both Kraft and Brazauskas seeking a court order permitting him to enter upon Kraft's property to remove the structure and to restore the terrain of Kraft's property to its original condition:

The Appellate Division Fourth Department ruled that the common law doctrine of accession provides that the owner of property is entitled to all that is added or united to it, either naturally or artificially. Thus, anything added to the property of an owner becomes part of the property, whether added by natural forces or by construction.

That doctrine of accession has been followed consistently by the courts in New York State. It has been relaxed in only limited circumstances; namely, if the mistaken improvement was made in good faith under a claim of title and there is either some misconduct on the part of the owner of the property or the owner failed to act promptly after he or she learned that the improvement was being made.

The Court ruled that neither of those exceptional conditions were present in this case. Neither DeAngelo nor Brazauskas contended that they had any claim of title to Kraft's property. Their only contention was that a mistake was made by constructing a house on Kraft's land. Also, it was manifest that Kraft did not fail to act promptly after learning of the house being built on his land. The evidence clearly established that Kraft had no knowledge whatsoever of the DeAngelo's mistake and was not aware of the construction of the house until he was informed of that fact by DeAngelo.

The Court ruled that by applying the common law doctrine of accession, Kraft was declared to be the owner of the accessed improvements, with free and clear title to the house constructed on and annexed to his real property.

DeAngelo v. Brazauskas & Kraft, 620 N.Y.S. 2d 692.) (Edward L. Schiff is the senior partner of the New York City law firm of Schiff, Turek, Kirschenbaum, O'Connell, LLP.
COPYRIGHT 1995 Hagedorn Publication
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1995, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:Focus on Management & Maintenance
Author:Schiff, Edward L.
Publication:Real Estate Weekly
Date:Oct 25, 1995
Previous Article:What building managers need to know about contracts.
Next Article:Owners should consider hardship application.

Related Articles
Contrary to IRS opinion, land remediation expenses should be deductible.
Depreciation planning for newly acquired commercial real estate.
Maintaining your edge in a competitive market.
Paying to play.
Committed to curb appeal: including regional landscaping directors on its executive team has helped Mid-America greatly improve its communities' curb...
Experts weigh in on market state at CHIP seminar.

Terms of use | Privacy policy | Copyright © 2018 Farlex, Inc. | Feedback | For webmasters