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Real Property Actions and Proceedings Law section 541: the mind-buster busted.

Jack and Jill, brother and sister and residents of New York State, acquired property as tenants in common through intestate succession. Jack immediately took possession of the property and built a home. Jill lived several hours from both the land and her brother. Although Jill occasionally saw Jack, they never discussed ownership of the land.

Fifteen years later, Jill decided to mortgage her half of the property in order to pay for her child's college education. When Jill approached Jack about this he laughed and explained that she no longer had an interest in the property. Several days later, Jill received a complaint alleging that Jack was the sole owner of the premises by virtue of his fifteen years of adverse possession. Distraught and confused, Jill contacted her lawyer. Unfortunately for Jill, her lawyer was equally confused about the applicable law and whether Jill had any interest in the land.

INTRODUCTION

In New York State, section 641 of the Real Property Actions and Proceedings Law (RPAPL) governs adverse possession between cotenants.(1) That section indicates:

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 co-tenant.(2)

However, this statute is somewhat obscure.(3) It is unclear when the adverse possession period begins to run against a cotenant under section 541. Therefore, how long a cotenant must adversely hold the property is likewise uncertain. The statute presumes that possession by one cotenant is the possession of all cotenants.(4) However, section 541 also indicates that this presumption ceases after one tenant continuously and exclusively possesses the property for ten years.(5) Therefore, a question arises "whether a tenant in common in possession (who has not ousted his co-tenant who is not in possession) must possess for ten years or for twenty years before acquiring full title by adverse possession."(6)

New York appellate courts have not definitively answered this question and are split in their interpretation of the statute. The Third Department held that the statute does not increase the ten year statutory period.(7) However, the Second Department held that the statutory presumption created a twenty year holding period.(8) One commentator has indicated his hope that "one day the Legislature or the Court of Appeals will answer this long-standing question."(9)

Since neither the Legislature nor the Court of Appeals has, this Comment will answer the "long-standing" question. The first part of this Comment examines the two departments' differing interpretations of RPAPL section 541.(10) This Comment then reviews common law adverse possession between tenants in common and highlights the problems that the Legislature hoped to remedy by enacting RPAPL section 541.(11) To further understand RPAPL section 541, this Comment considers the legislative history and intent behind RPAPL section 541(12) and examines RPAPL section 531, which is similar to RPAPL section 541.(13) Then, to determine whether the lawyers or the courts erroneously interpreted the section, this Comment considers briefs presented to the different Departments in section 541 actions.(14) Further, this Comment considers the statutory and common law in other states to see if a common thread exists which might solve this specific problem in New York.(15) Finally, this Comment answers the "long-standing" question which surrounds this section and, therefore, busts the mind-buster.

I. CONFLICTING VIEWS OF ADVERSE POSSESSION BETWEEN COTENANTS

The Second Department was the first New York appellate court to review RPAPL section 541 after its amendment in 1975. This court determined that the presumption did not cease until the end of the initial ten year period. In Kraker v. Roll,(16) Frederick Roll, Sr., died intestate in 1963.(17) He was survived by three children, Fred, Anna, and Lydia.(18) Because of their father's intestacy, the children inherited the property as tenants in common.(19) Anna and Fred continued to live on the property. Although Lydia lived elsewhere, she regularly visited the property.(20) In 1976 (thirteen years after the creation of the tenancy in common), Fred conveyed the property to Squirrel Hill Homes, Inc.(21) Lydia then brought suit against Anna, Fred, and Squirrel Hill Homes, Inc., to determine what interest Fred conveyed to Squirrel Hill Homes, Inc.(22)

At issue was whether Fred conveyed only his one-third interest as a tenant in common or if he had acquired title by adverse possession such that he conveyed full title to Squirrel Hill Homes, Inc.(23) The Second Department first reiterated section 541's presumption that a tenant in common holds property for the benefits of all tenants in common and that such possession is in conformity with the rights of the other cotenants.(24) The court, considering Fred's adverse possession claim, then stated that the possession of a cotenant "becomes adverse on unmistakable repudiation of the owner's right by the possessor and notice thereof to the owner."(25) In the absence of oral or written words, the court indicated that such notice is presumed only where the cotenant's actions are so hostile or unequivocal that they unmistakably indicate to other cotenants that their title is being attacked.(26)

In Kraker, Fred's only hostile acts were a series of expenditures for the maintenance of the property from 1963 to 1976.(27) The Second Department declared that such payment of expenses did not indicate to the other cotenants that Fred was attacking their title.(28) In fact, the court concluded that it was "perfectly reasonable to expect that a cotenant who is actually receiving the benefit of living on a property should be the one who foots the bill for reasonable expenditures associated with the property."(29) As a result, the Second Department held that there was no ouster and that the statute had not begun to run until the 1976 conveyance to Squirrel Hill Homes.(30)

Kraker never directly addressed the problem of the ten year presumption in RPAPL section 541. In Kraker, the Second Department focused on the character of Fred's possession to determine that it did not give the other cotenants notice of an adverse claim of ownership.(31) In effect, the Second Department held that section 541's presumption exists until one of the two following things happens: (1) an ouster by the possessing cotenant; or (2) the expiration of the ten-year period. Because the court did not find any activities that would put a cotenant on notice and thereby constitute an ouster, the court could not hold that there had been adverse possession until the conveyance. Therefore, the court used RPAPL section 541 only for the presumption that a possessing tenant in common holds the property for the benefit of all cotenants.

A few months after Kraker, the Second Department decided Kolb v. Anisis(32) which addressed the problem of the ten year presumption. In Kolb, a husband and wife acquired title to property in 1963.(33) In July, 1970, the defendant acquired title to the wife's portion of the property through a foreclosure sale, which created a tenancy in common between the defendant and the husband.(34) The couple remained in possession of the property and continued to collect rents and profits.(35) In 1982, the couple initiated an action to clear the defendant's interest from their title.(36) On these facts, the Second Department indicated:

[A]ssuming that during that 10-year period [between 1970-1980]

plaintiff [husband] had continuous exclusive occupancy,

his possession of the premises was not adverse to defendant

until 1980, 10 years after the relationship of a tenancy in

common was created, unless defendant is found to have been

ousted before that time. . . . Accordingly, plaintiffs' claim of

adverse possession could not be properly asserted before 1990

unless an ouster is established.(37)

The Second Department concluded that adverse possession periods run consecutively(38) when there has been no ouster.(39) This means, absent ouster, that a cotenant adversely possessing against another cotenant had to possess the land for twenty years. Since the Second Department in Kolb determined that there was insufficient evidence to support an ouster, it concluded that the periods ran consecutively and that the couple had to possess the property for twenty years to establish adverse possession.(40)

The Second Department, therefore, established the view that RPAPL section 541 requires, absent ouster, twenty years of exclusive and continuous possession by a cotenant against fellow cotenants. Considering the statute, its legislative history,(41) and the common law conceptions of cotenancy, adverse possession and ouster,(42) this interpretation seems reasonable.

However, in 1990, the Third Department obscured this interpretation of section 541.(43) In Article Ten Properties, Ltd. v. Kocak,(44) the plaintiff acquired a half interest in the defendant's land by purchasing a tax deed dated October 3, 1974.(45) The defendant farmed, logged, rented, and improved the property for more than ten years, while the plaintiff's only contact with the property was the initial payment for the tax deed and one visit to the property.(46) In 1985, the plaintiff commenced an action for partition of the property.(47) Based on the nature of his possession, the defendant asserted the affirmative defense of adverse possession.(48)

Refusing to follow the Second Department, the Third Department concluded that the nature of the defendant's possession overcame the statutory presumption.(49) Unlike the Second Department in Kolb, the Third Department held that the Legislature, by creating the ten-year presumption, did not prohibit adverse possession claims against cotenants after only ten years of exclusive and continuous possession.(50) If the Legislature had intended such a result, the court reasoned, it could have plainly stated this in the statute.(51) The Third Department explained that "RPAPL 541 creates a presumption that a tenant in common holds the property for the benefit of another tenant in common which can be rebutted with a showing of adverse possession, a factual issue which the jury resolved in defendant's favor."(52)

In 1992, the Third Department revisited this issue in Porter v. Marx.(53) In Porter, the plaintiff alleged that his father orally gave him nearly five acres of the family farm upon which the plaintiff then built his home.(54) In 1972, the plaintiff's father died intestate leaving the farm to the plaintiff and his two brothers. In 1974, the plaintiff's brothers gave him a deed which he thought covered the five acres his father allegedly granted him. However, the deed actually covered less than two acres.(55)

In 1990, the plaintiff commenced an action alleging title by adverse possession against his cotenants.(56) The defendants, relying on rationale similar to Kolb, argued that the adverse possession claim could not be maintained until 1992, twenty years after the death of their father and the creation of the cotenancy.(57) The Third Department rejected this argument, stating that "[i]f adverse possession is established, then the presumption that plaintiff held the land in question for the benefit of the other tenants in common, so that his claim has not yet ripened, will be rebutted."(58)

While recognizing adverse possession, the Third Department again ignored the ouster issue. The problem with this reasoning lies in determining the holding period and when the adverse possession begins. Apparently, the Third Department applied the retroactive interpretation that exclusive possession for ten years is adverse and that the holding period will run concurrent to the ten-year period of RPAPL section 541.(59)

Therefore, the proper interpretation of RPAPL section 541 is still unsettled in New York. The Second Department maintains that, in the absence of an ouster, exclusive and continuous possession must last for twenty years before a claim of adverse possession can be properly asserted (the periods run consecutively). The Third Department, on the other hand, holds that a ten-year period is all that is required (the periods run concurrently). This Comment demonstrates that the Second Department's reasoning is correct.

II. ADVERSE POSSESSION BETWEEN COTENANTS: NEW YORK COMMON LAW

Under New York common law, a possessing cotenant was deemed to hold for the benefit of fellow cotenants.(60) The purpose for this rule was that "[t]here would be no safety for tenants in common, if those who were occupants . . . [could establish] adverse possession . . . and the statute of limitations [would] commence running against those who were out of possession" based only upon the existence of exclusive possession.(61)

However, it was still possible for one cotenant to adversely possess against another cotenant at common law. Under the common law, possession by one cotenant could become adverse by actual ouster.(62) The leading case on ouster is Culver v. Rhodes.(63) In Culver, the New York Court of Appeals indicated that in order to constitute an actual ouster, a possessing cotenant must give "notice in fact to the [non-possessing] co-tenant" of his or her adverse intent.(64) New York courts recognized various acts that gave such notice and constituted ouster. First, a conveyance of the entire parcel by the possessing cotenant to a third party was clearly an act of ouster.(65) Other acts which might constitute an ouster included actual and exclusive possession of the whole premises while verbally claiming to be the owner,(66) exclusive receipt of rents and profits coupled with an exclusive claim of title,(67) refusal to account for rents and profits or a denial of title on demand of a cotenant,(68) taking title from a hostile source and refusing to let in fellow cotenants,(69) locking the doors to the property and refusing to allow a cotenant to enter,(70) or publicly claiming title.(71)

As indicated previously, mere possession of a premises by one cotenant does not constitute an actual ouster of fellow cotenants in New York.(72) The Court of Appeals noted:

[A possessing tenant in common,] receiving all of the profits

. . . is deemed to have undertaken to discharge certain duties

to his co-tenants which are analogous to that which a tenant

for life owes . . . that of preserving the property by making

needful, ordinary repairs, payment of taxes and other

annually maturing liens, such as interest upon a

mortgage.(73)

Under the common law, the possessing cotenant had a duty to care for the premises and such possession and care did not constitute an actual ouster.(74) For example, many courts have recognized that a cotenant in possession must "foot" the bill for the use of the property.(75) Therefore, before adverse possession begins, the cotenant's possession needs to be a hostile and illegal possession against the non-possessing cotenant's interest.

Actual ouster under the common law was generally not a problem since it usually involved a situation where the intent of the possessing cotenant was expressly communicated.(76) However, the common law also recognized presumed ouster, which was "unequivocal acts, so open and public, that notice may be presumed of the assault upon his title, and the invasion of his rights."(77)

Considering this in conjunction with the idea of an actual ouster, the courts had difficulty applying the principle of an inferred or presumed ouster. If a cotenant possessed the property, paid all the rents, received all the profits, made all the repairs and acted in all other respects as the true owner, the question would be whether this was "footing" of the bill or whether these acts were of such a character as to constitute an inferred or presumed ouster of fellow cotenants.

The difficulty in determining an inferred ouster is illustrated by the varying circumstances under which courts have allowed adverse possession claims. Berger v. Horsfield(78) is an excellent example of the strange results which the common law produced. In Berger, the possessing cotenant maintained exclusive possession and control, through himself and his predecessors in title, for eighty-three years.(79) Despite this prolonged period of exclusive possession, the court held that there was no ouster. The court reasoned:

As the title gained by adverse possession rests upon the

laches of the real owner who fails to assert his title against

the one claiming adversely, and as a tenant in common may

be rightfully in possession . . . the tenant in common out of

possession may rest quiescent without laches until charged

with knowledge that his cotenant's possession is hostile to his

title.(80)

Therefore, under New York common law, a cotenant and his predecessors could exclusively possess and care for property in excess of eighty years with no guarantee that they had perfected a claim to such property. In other words, a major shortcoming of the common law was its inability to define, in the absence of ouster, how many years a cotenant had to exclusively possess the property to acquire title adversely.

However, several courts still presumed ouster and granted adverse possession when a cotenant maintained exclusive and continuous possession for a long period of time.(81) In Zapf v. Carter,(82) the Fourth Department, considering presumed ouster, first indicated that "`[p]rima facie, the possession of one tenant in common is the possession of all; . . . but if one tenant in common enters upon the whole land, and takes the entire profits, claiming and holding exclusively for the whole statutory period, an actual ouster . . . may be presumed.'"(83) However, the court further reasoned:

[I]t is not necessary, in order to prove that a tenant in

common has claimed the whole exclusively, that it should be

proved that he made an express declaration to that effect; for

may be shown clearly by acts as well as words. Where one

enters and takes the profits exclusively, and continuously for

a long period, under circumstances which indicate a denial of

a right in any other to receive them, as by not accounting,

with the acquiescence of the other tenants, an ouster may be

presumed in this country.(84)

The two views enunciated in Zapf require different showings to prove presumed ouster. The first method only requires an exclusive holding for the statutory period.(85) The second method requires a "long period" in addition to evidence of hostile possession to create a presumption of ouster.(86) In Zapf, in addition to occupying the premises for twenty-three years, the cotenant maintained the property, paid the taxes, sold a portion of the land, and attempted to sell more of the property.(87) When the cotenant died, her foster-child took exclusive control of the property.(88) The other cotenants, who lived close to the property, were aware of the foster-child's actions.(89) Based on the entire character of the possession, and not simply on exclusive possession, the Fourth Department held that the foster-child's possession was adverse.(90) In doing so, the Fourth Department accepted the second view that presumed ouster requires more than mere possession for the statutory period.(91)

As indicated previously, under the common law a cotenant in possession held for the benefit of fellow cotenants.(92) However, a cotenant's exclusive possession, while not automatically adverse, may rise to the level of a hostile claim if the possessing cotenant ousts non-possessing cotenants.(93) At common law, the clearest form of ouster was an actual ouster whereby the possessing cotenant made an open adverse claim to title.(94) However, the common law also recognized presumed or inferred ouster when the possessing cotenant gave constructive notice of the adverse claim to nonpossessing cotenants by his or her actions.(95)

However, absent actual ouster, the common law failed to define when a court should presume or infer an ouster. Unresolved, at common law, was whether prolonged possession or possession coupled with other evidence of hostile possession was sufficient to presume ouster.(96)

RPAPL section 541 recognized and attempted to clarify these common law rules. As a result of RPAPL section 541, courts would not have to struggle with presumed or inferred ouster. The next section of this Comment considers the legislative history of RPAPL section 541 and its predecessors in order to clarify the Legislature's intent to produce a standard which the common law had struggled, yet failed, to consistently provide.

III. THE LEGISLATIVE HISTORY OF RPAPL SECTION 541

A. Civil Procedure Act Section 41-a and the 1963 Enactment of RPAPL Section 541

In its first attempt to clarify the issue of adverse possession between cotenants, the New York Legislature enacted section 41-a of the Civil Practice Act (CPA). The pertinent text of the statute read:

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 not be made after the expiration of fifteen years of

continuous occupancy by such tenant, personally or by his

servant or by his tenant, or after an ouster by one tenant of

the other.(97)

Originally, this section also contained a savings clause which stated that in the case of occupancies prior to the effective date of the Act (March 18, 1949), the presumption that a cotenant was holding for the benefit of the other cotenants would cease on the later of the date of completion of fifteen years occupancy by the cotenant or September 1, 1935.(98) The Law Revision Committee interpreted this early version of what would later become RPAPL section 541 as follows:

Taken in its entirety, chapter 184 (L. 1949) could only be

interpreted to provide that the presumption of nonadverse

possession expired after fifteen years of exclusive occupancy

by one tenant in common (but no earlier than September 1,

1935), following which the fifteen year period of limitation,

within which an action to recover realty must be brought,

could commence (Civ. Prac. Act, [sections] 34). Thus, nonoccupying

joint owners had until September 1, 1950 or later (a

minimum period of 1 year, 5 months and 13 days from the

enactment of the new statute or 30 years from the beginning

of exclusive occupancy by one cotenant, whichever is later) to

protect their interests in lands occupied by cotenants in common.(99)

Based on this excerpt, the Legislature clearly intended this statute to require a thirty year holding period as opposed to the normal fifteen year period.(100) However, like the current version of RPAPL section 541, CPA section 41-a also recognized that the limitations period on adverse possession between cotenants would also start to run at ouster.(101)

In 1962, the Legislature codified CPA section 41-a into RPAPL section 541.(102) Section 541 was identical to CPA section 41-a except that section 541 reduced the presumption period from fifteen to ten years.(103) Again, although the statute clearly codified the common law rule of an ouster, it also attempted to provide clarity as to when such an ouster might be presumed. At issue is whether the early courts interpreted the statute properly.

B. Sea Cove Marina, Dickson and Graham

A supreme court considered an application of CPA section 41-a in Sea Cove Marina, Inc. v. Uhlendorf.(104) In Sea Cove Marina, a cotenant purchased property in a tax sale, which the court held was the equivalent of paying taxes and not an ouster of fellow cotenants.(105) Drawing on CPA section 41-a, the court acknowledged the presumption that cotenants possess for the benefit of other cotenants.(106) However, the court still suggested that the statute required only a fifteen year holding period when it concluded that "as 15 years had not elapsed from that time [of possession] until this action was instituted, the claim of adverse possession must fail."(107) Therefore, early on it appeared that the courts would misinterpret section 41-a.

A supreme court addressed the proper interpretation of CPA section 41-a in Dickson v. Caruso.(108) The parties in Dickson argued the same conflicting interpretations presently proposed by the Second and Third Departments.(109) Like the Second Department, the plaintiff urged that a cotenant had to hold the property for fifteen years before the statutory limitation period even started to run.(110) In effect, the plaintiff argued that the statute required a thirty year holding period. Similar to the Third Department's interpretation of RPAPL section 541, the defendant asserted that after fifteen years of exclusive possession the presumption of non-adverse possession ceased retroactive to the initial possession.(111) That is, the defendant argued that the fifteen year periods ran concurrently, which, in effect, allowed adverse possession to be perfected after fifteen years.

Before deciding the case, the court acknowledged that a proper interpretation of CPA section 41-a had not yet been reached and that it would not attempt to give it one.(112) Sidestepping an interpretation of section 41-a, the court determined, based on common law ouster, that the possessing cotenant's actions were so contrary to the cotenancy that they warranted a determination of adverse possession.(113) Although the Dickson court did not interpret section 41-a, it still went farther than the Sea Cove Marina court by ignoring the fifteen-year statutory presumption and applying a presumptive ouster under the common law. If a court could apply a presumptive ouster, what purpose did CPA section 41-a serve?

As indicated above, the Legislature codified section 41-a into RPAPL section 541 in 1962, changing only the presumptive period to ten years.(114) Graham v. Graham(115) was the first case to interpret RPAPL section 541. The court in Graham explained:

It is apparent from the language of the statute and from the report of

the Law Revision Commission [that] it was the intention of the legislature

that even without an ouster, no more than 15 years' continuous adverse

possession (so in 1949, but 10 years under the present law) should be

required for adverse possession to be established against a tenant in

common. The presumption is not intended to add directly to the limitations

already existing but is a presumption of fact limited to run from the

beginning of proof of actual continuous occupancy by one tenant in

common in the manner described in the section, and to that extent,

concurrently with the statutory adverse possession required as to third

parties and not consecutively.(116)

Therefore, the court held that RPAPL section 541 did not alter the statutory holding period between tenants in common. Instead, the court determined that RPAPL section 541 created a presumption which merely coexisted with the statutory adverse possession period. This reasoning took the teeth out of RPAPL section 541 as tenants in common were, in effect, placed on the same footing as strangers who adversely possessed. The Legislature reacted, albeit slowly, to these misinterpretations.

C. The 1975 Amendment to RPAPL Section 541

In 1975, the Legislature amended RPAPL section 541 as follows:(117)

[sections] 541. Adverse Possession, [how affected] by [relation of] tenants in common

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 not be made [cease]

after the expiration of ten years of continuous [exclusive]

occupancy by such tenant, personally or by his servant or

by his tenant, or after [immediately upon] an ouster by

one tenant of the other [and such occupying tenant may

then commence to hold adversely to his cotenant].(118)

The Legislature changed the statute's language to clarify the interpretation of RPAPL section 541.(119) The Legislature specifically intended to require a ten year holding period by a cotenant before the statutory adverse possession period could even begin to run.(120) This clarification came in direct response to cases like Dickson and especially Graham, which held that the holding periods ran concurrently.(121)

The language of the Act and its legislative history further indicate that the Legislature intended to provide greater protection for tenants in common by creating the presumption that the possessing cotenant possessed for the benefit of other tenants in common.(122) Absent ouster, this presumption exists for ten years. At the end of the initial ten years, the presumption ceases and the cotenant in exclusive possession holds adversely from that moment.(123) This statutory presumption required two consecutive ten year holding periods (i.e. a total of twenty years), as opposed to the two concurrently running periods (i.e. a total of ten years) advocated in Graham.

The next section of this paper considers RPAPL section 531 which regulates landlord-tenant relations. This section is significant to this discussion since the Legislature created, amended, and drafted sections 531 and 541 in similar fashion.

IV. ADVERSE POSSESSION BY A TENANT AGAINST A LANDLORD: RPAPL SECTION 531

As noted above, the Legislature amended RPAPL section 531 along with RPAPL section 541 in 1975.(124) The amended statute follows:(125)

[sections] 531. Adverse possession, how affected by relation of landlord and tenant

Where the relation of landlord and tenant has

existed between any persons the possession of the tenant

is deemed the possession of the landlord until the

expiration of ten years after the termination of the

tenancy; or, where there has been no written lease, until

the expiration of ten years after the last payment of rent;

notwithstanding that the tenant has acquired another

title or has claimed to hold adversely to his landlord.

But this presumption shall not be made [cease] after the

periods prescribed in this section [and such tenant may

then commence to hold adversely to his landlord].(126)

The Law Revision Commission indicated that the Legislature intended section 531 to require a tenant to hold property for twenty years.(127) The first ten years covered the presumptive period in which the tenant held for the benefit of the landlord, while the second ten years was the statutory period for adverse possession.(128)

Therefore, the purpose of RPAPL section 531 mirrored that of RPAPL section 541. However, in the case of a landlord-tenant relationship, the cessation of rental payments gives the landlord notice of the tenant's adverse intents. Despite this common sense view, the Legislature still declared that a tenant presumably holds for the benefit of the landlord for ten years. Analytically, this presumption is more difficult to accept than the presumption that a tenant in common holds for the benefit of fellow cotenants. After all, a tenant in common may not receive an unequivocal act, such as the cessation of rent or holdover, which would indicate an adverse claim. The Legislature wanted to protect a landlord who has notice that a tenant is no longer paying for the privilege to use the land and is therefore holding adversely to the landlord's interests. If the Legislature felt that a landlord needed such protection, despite the existence of clear notice, it follows that a cotenant should be similarly protected, since possession by a fellow cotenant is a legal right and is not, by definition, adverse.

The Fourth Department correctly applied RPAPL section 531 in Gallea v. Hess Realty Corp.(129) In Gallea, the court recognized the Legislature's intent to protect a landlord "by distinguishing claims by tenants whose possession initially is authorized and permissive from claims by strangers, whose claims are adverse from their inception."(130) The Fourth Department concluded that a minimum period of twenty years must run, starting with the last payment of rent or the expiration of the lease, before a claim of adverse possession can be maintained by a tenant against a landlord.(131)

However, like RPAPL section 541, the Departments may split in their interpretation of section 531. The First Department may have misconstrued RPAPL section 531 in Ley v. Innis.(132) In Ley, although the First Department denied a claim under RPAPL section 531, it opined that "[t]he ten-year statute of limitations only begins to run after termination of the written lease. Until then the presumption of nonadversity is conclusive."(133) The First Department suggests that the presumptive period does not apply after the expiration of the lease. This is contrary to the plain meaning of the statute and its legislative history. Nevertheless, this decision did not create a split between the Departments as Kolb and Kocak did. The defendants did not even satisfy the normal ten-year holding period and, therefore, the court did not have to apply RPAPL section 631 on these facts.(134)

The Fourth Department correctly interpreted RPAPL section 531 and no other Department has contested its interpretation. Unfortunately, the Third Department failed to examine the Fourth Department's explanation of section 531 when it considered section 541. However, based on its holdings in Article Ten Properties and Porter, even if it had considered Gallea, the Third Department probably would have concluded that the RPAPL section 531's presumption was rebuttable and ran concurrently with the normal statutory period.

V. BRIEFS SUBMITTED TO THE SECOND AND THIRD DEPARTMENTS

In light of the clear legislative history and analogous case law, an important question is whether parties advanced these arguments to the Second or Third Departments. This section looks at briefs submitted in cases before those Departments to see how the parties argued this issue to the courts.

The plaintiff-appellant's (plaintiff's) brief submitted in Kolb v. Anisis(135) addressed whether the Legislature intended RPAPL section 541 to add directly to the limitation period or whether the time period was meant to run concurrently with the presumption that a cotenant holds for the benefit of fellow cotenants.(136) The plaintiff relied directly upon Graham v. Graham(137) for the proposition that

no more than ten years should be required for adverse possession to

be established against a tenant in common and that the presumption

set forth in Section 541 RPAPL did not intend to add to the

already existing limitations but was intended to run concurrently with

the statutory provisions for establishing adverse possession

concurrently and not consecutively. (138)

Unfortunately, as this Comment has shown, the above reasoning is incorrect. Indeed, the plaintiff relied upon case law which prompted the amendment to RPAPL section 541 in 1975.(139) Therefore, the plaintiff never addressed the significance of the 1975 amendment.

The defendant-respondent's (defendant's) brief also did not address the proper interpretation of RPAPL section 541. Instead, the defendant only argued that the plaintiff could not possess adversely against him because of their relation as cotenants.(140) Of course, RPAPL section 541 partially supports this claim since it presumes that each cotenant holds for the other in the absence of an ouster.(141) However, the statute, as well as the common law, does not bar a cotenant from adversely possessing against fellow cotenants.(142) The defendant's brief argued further that the plaintiff was simply a guest of her husband and was not adversely possessing the property.(143)

Despite the failure of both the plaintiff and defendant to brief the issue, the Second Department properly concluded that the ten year presumptive period of RPAPL section 541 runs consecutive to the adverse possession statute of limitations.(144) To reach the correct result, the Second Department, on its own initiative, researched the legislative history of RPAPL section 541.(145)

The plaintiff-appellant's (plaintiff's) brief to the Third Department in Article Ten Properties, Ltd. v. Kocak(146) stated that under RPAPL section 541

if a tenant-in-common has not occupied a piece of property

continuously for a period of at least ten years, or unless he has

actually ousted the other tenants-in-common, there can be no

adverse possession . . . because the occupancy of one tenant . . . is

deemed under the law to be the possession of the other.(147)

The plaintiff also cited Kolb for the proposition that the periods run consecutively not concurrently.(148) Furthermore, the plaintiff declared that there was no evidence of ouster as the defendant-respondent (defendant) admittedly never gave notice.(149) In conclusion, the plaintiff claimed that

Assuming, for the sake of argument only, that defendant

continuously and exclusively occupied the subject property for ten

years, his possession could not even have become adverse to

plaintiff until October 3, 1984, ten years after the creation of the

co-tenancy relationship. Under these assumed facts, defendant's

possession would not ripen into a valid adverse claim until October

3, 1994, twenty years after plaintiff acquired the fifty (50%) percent

ownership interest in the property.(150)

The plaintiff's interpretation of RPAPL section 541 was consistent with the Second Department's interpretation,(151) the legislative history intent,(152) and the public policy behind the statute.(153) The plaintiff even addressed the question of an ouster:

[T]here was no physical ouster of the plaintiff from the property and

no notice in fact to plaintiff of defendant's claim to plaintiff's fifty

(50%) percent ownership interest. Nor was the character of

defendant's possession such that it may be presumed to have been

an assault upon plaintiff's fifty (50%) percent ownership interest.(154)

Throughout the brief, the plaintiff correctly asserted the presumption of RPAPL section 541.(155) Unfortunately, the plaintiff's brief did not mention the legislative history or RPAPL section 531. Despite these omissions, the brief correctly stated the proper application of RPAPL section 541 for the Third Department.

The defendant's brief in Article Ten first asserted that the statutory presumption of RPAPL section 541 should not apply because of how the plaintiff acquired his interest (i.e. a tax sale).(156) The defendant attempted to distinguish Kraker by stating that the "parties were not friends, or relatives, and Mr. Kocak certainly did not desire to be co-tenants with Article Ten."(157) The defendant claimed that since the plaintiff forced himself into a cotenancy relationship, there was never any trust between the parties. Therefore, as there was no reason for the defendant to preserve the plaintiff's title, the possession was hostile from its inception.(158) The defendant further claimed, because of the hostile nature of the relationship, that the plaintiff should have taken legal steps to secure his interest from the beginning, instead of waiting over ten years.(159)

Although the defendant's argument is appealing, it unfortunately ignored the statutory presumption. In effect, the defendant argued that there was a presumed ouster from the beginning of the relationship and that the plaintiff should have known the defendant's intentions. Again, this would have been a reasonable basis for the Third Department's ruling. However, the Third Department did not rely on this for its decision.

The defendant then fell into the same trap as his predecessor from the Second Department by relying upon Graham.(160) The defendant asserted that the court in Graham had studied the language of the Statute, and also the report of the Law Revision Commission regarding the enactment of Section 541, and the Court concluded that the presumptive 10 year period was not intended to add to the statutory period of adverse possession, but merely was a presumption of fact which would run concurrently with the statutory period of adverse possession.(161)

The defendant further attempted to explain the legislative intent behind RPAPL section 541. Sadly, the attempt was unsuccessful since the defendant relied upon a case that not only misinterpreted the statute and the Law Revision Commission's intent, but also caused the amendment of RPAPL section 541 in 1975.(162) Neither the parties nor the Third Department in Article Ten considered the 1975 amendment of RPAPL section 541. Instead, the Third Department merely noted that the Second Department's interpretation was erroneous and that the ten-year period ran concurrently, not consecutively.(163)

The Third Department reconsidered the issue a few years later in Porter v. Marx.(164) In that case, the trial court held that "[s]ince no ouster had been alleged by plaintiff . . . as a matter of law, plaintiff could not even begin to hold adversely to his cotenant until 10 years after title passed to them in 1974."(165) The plaintiff-appellant (plaintiff) relied on Article Ten for the rule that the presumption in RPAPL section 541 was a rebuttable presumption.(166) The plaintiff relied solely upon the factual assertions stating:

Thus we have substantial evidence on the record that, neighbors,

relatives, and even co-tenants on other portions of the property held

as tenants in common, assumed and believed and acted as if the

piece of property in dispute was held by plaintiff and by plaintiff

alone and not for the benefit of his cotenants.

It cannot be disputed that there are facts present on the

record below that would rebut the presumption inherent in

RPAPL 541.(167)

The plaintiff argued that the actions of the possessing cotenant gave notice to fellow cotenants that he was holding adversely. Therefore, the plaintiff concluded, the ten year presumption of RPAPL section 541 was not applicable. The only problem with this reasoning was that it neglected the statutory component of ouster. The statute clearly provides that the ten year period runs unless there is an ouster of fellow cotenants.(168) However, although the arguments in the brief certainly supported the common law theory of a presumed ouster, the plaintiff never addressed ouster, either actual or presumed.(169)

The defendant-respondent (defendant) asserted first that the actions of the plaintiff did not rise to the level of a hostile claim.(170) The defendant then admitted that the trial court's ruling was not in accord with the Third Department's interpretation of RPAPL section 541.(171) However, the defendant stated:

Given the conflict now present between the rulings of the Second

and Third Departments, it is respectfully submitted that this Court

should reconsider its interpretation of RPAPL Section 541....

According to the Second Department, the legislative intent

underlying RPAPL Section 541 is consistent with Kolb given a

report of the Law Revision Committee prepared in 1975.... Further,

the Kolb result is the more logical application of the law.(172)

Finally, a party in the Third Department managed to point to the legislative intent of RPAPL section 541, even if it was by means of the Second Department's opinion in Kolb v. Anisis.(173) The defendant perfectly stated the law, demonstrating the view of the Second Department, the legislative intent, as well as the logic and public policy behind the statute. The defendant forcefully argued the logical interpretation of RPAPL section 541 as follows:

RPAPL Section 541 was plainly enacted because of the special

relationship that exists between co-tenants. It would not make sense

to create a ten year presumption in favor of a non-possessory

co-tenant that would expire simultaneously with the ten year statute

of limitations. If that were so, there would be no purpose at all

served by RPAPL 541. A non-possessory co-tenant would be in no

better position than an ordinary landowner who was not a co-tenant. After

the first ten years of possession in either event, title would be acquired.

Therefore, it makes more sense to conclude that as against a

co-tenant, the statute of limitations does not begin to run unless one

of three things happens -- actual ouster of the non-possessory

co-tenant, expiration of the presumption in favor of the

non-possessory co-tenant by operation of law after ten years or

rebuttal of the presumption by the possessory co-tenant.(174)

The defendant made an excellent argument in favor of the proper interpretation of RPAPL section 541. The only problem with the defendant's argument is the adoption of the idea of a rebuttable presumption. There is no evidence that the Legislature intended to adopt a rebuttable presumption. Instead, the presumption existed for ten years or until there was an ouster. Obviously, the possessing cotenant must prove the ouster, whether actual or presumed. However, this is not a rebuttal of the presumption, but rather a determination of when the normal ten-year holding period begins. An actual ouster certainly destroys the presumption of RPAPL section 541.(175) A presumed ouster under RPAPL section 541 raises the same difficult questions as under the common law. The intent of RPAPL section 541 was to overcome the inherent uncertainty which surrounds the doctrine of a presumed ouster.(176) Under RPAPL section 541, a possessing cotenant presumably ousts the non-possessing cotenant at the end of ten years. At that point, the ten-year holding period for adverse possession begins to run against fellow cotenants.(177)

Despite the excellent arguments presented by the defendant-respondent and the lower court's proper ruling, the Third Department refused to re-examine its interpretation of RPAPL section 541.

VI. Adverse Possession Between Cotenants In Other States

The Table illustrates the confusion that pervades the common law of states which continue to employ the doctrine of a presumed ouster.(198) In the absence of an actual ouster, the question is always whether the cotenant in possession has acted in a manner to put his fellow cotenants on notice. Requiring a determination on a case-by-case basis, unfortunately, leads to inequities between parties. In one case, exclusive and continuous possession by the cotenant and his predecessors in title for eighty-three years was not sufficient to adversely possess against non-possessing cotenants.(199) In other cases, ninety years,(200) thirty-seven years,(201) or twenty-one years(202) were sufficient to constitute a presumed ouster. The purpose of RPAPL section 541 was to end this uncertainty and develop a necessary holding period, namely twenty years. This would eliminate arguments about when and whether non-possessing cotenants were on notice of an adverse claim. The statute leveled the playing field so that parties in different courts would be treated uniformly. New York was in the vanguard in enacting this statute, yet it appears that RPAPL section 541 has done little to uncloud the waters.
Table 1

 Regular Adverse Adverse Possession Period
State Possession Period Required Between Cotenants

New York 10 years(178) In dispute(179)
Pennsylvania 21 years(180) 21 years(181)
Massachusetts 20 years(182) No set rule(183)
Vermont 15 years(184) No set rule(185)
New Jersey 30 years(186) No set rule(187)
Minnesota 15 years(188) No set rule(189)
Virginia 15 years(190) No set rule(191)
Texas 10 years(192) No set rule(193)
Florida 7 years(194) No set rule(195)
California 5 years(196) No set rule(197)




CONCLUSION

The proper interpretation of RPAPL section 541 remains unsettled. It is the "perennial mind-buster." Ultimately, there is no reason for such confusion since the intent of the statute is clear. In light of New York's common law history, it was obvious to the legislature that the relationship between cotenants deserved special protection. Although a common law presumption existed, the concept of a presumed or inferred ouster waited in the wings and was ready to ambush the unwary non-possessing cotenant. The inequities of this result prompted the legislature to draft RPAPL section 541. When it was obvious to the Legislature that its initial attempt to remedy the problem was being ignored by lower courts, it amended RPAPL section 541 in 1975, specifically stating its intention to overrule the erroneous interpretations of the lower courts. Despite these efforts and explicit coaching in the legislative history, RPAPL section 541 continues to be misapplied. The blame for this misinterpretation cannot fall upon the briefs submitted to the Third Department. Although some of those briefs advocated an erroneous interpretation and relied upon case law which had prompted the 1975 amendment, other briefs addressed the proper interpretation of RPAPL section 541 relying upon the Second Department, legislative history, and logic. For some reason, the Third Department did not consider the legislative history. Instead, it concluded that the intent of the legislature was exactly opposite the actual intent evidence in the statute's Bill Jacket. The Third Department offered no authority for its determination and continued to hold its erroneous view even when a proper interpretation was presented to it.

If a case under RPAPL section 541 ever arises in the Fourth Department, it is likely that it will follow the reasoning of the Second Department. This is especially likely in view of its interpretation of RPAPL section 531, which is in accord with the Second Department's view of RPAPL section 541. Sadly, in light of its apparent misinterpretation of RPAPL section 531, it appears that the First Department may follow the Third Department if it ever had to determine the proper application of RPAPL section 541. Thus, it appears that the split in the Departments will continue even if all the Departments have a chance to address the issue.

Therefore, New York remains a state, like the rest of the nation, in which the common law uncertainties continue to reign and control the relations between cotenants. RPAPL section 541 was a revolutionary statute which could have been an example to sister states to solve the common law problem of a presumed ouster. Instead, the statute has been transformed into a "mind-buster" with no apparent solution. This Comment has demonstrated that there is no "mind-buster," simply an erroneous holding by the Third Department. Hopefully, the split between the Departments can be resolved in accord with the spirit of the statute so that the special relationship between cotenants can be raised above that of mere strangers. (*) To my grandmother, Mildred Legg, for her love, patience, and support. By continually reminding me, in essence, that I held my toys in common with my brother and that I was not allowed to "adversely possess" those toys from him, she introduced me to the topics covered in this Comment. I would also like to thank Professor John C. Welsh for his excellent advice and Thomas R. Anderson for his skillful editing.

(1) N.Y. Real Prop. Acts. Law [sections] 541 (McKinney 1979). The law of adverse possession generally requires that possession of property "must be hostile and under claim of right, actual, open and notorious, exclusive and continuous." Brand v. Prince, 324 N.E.2d 314, 316 (N.Y. 1974) (citing Belotti v. Bickhardt, 127 N.E. 239, 241 (N.Y. 1920)). The New York Court of Appeals has stated that adverse possession exists where the owner has "a cause of action in ejectment against the occupier" until the prescriptive period has run. Id. (citation omitted). However, since each cotenant is entitled to hold the property, it is difficult to apply this rule to a cotenancy situation. Therefore, ejectment is less of a benchmark for determining whether possession is adverse between cotenants. This Comment focuses on the problem of when a cotenant's exclusive possession of common property constitutes adverse possession.

(2) N.Y. Real Prop. Acts. Law [sections] 541 (McKinney 1979).

(3) See John J. Meehan, Practice Commentary, in N.Y. Real Prop. Acts. Law [sections] 541 (McKinney Supp. 1995) ("This unclear statute is a perennial mind-buster.").

(4) N.Y. Real Prop. Acts. Law [sections] 541 (McKinney 1979).

(5) Id. The proper interpretation of RPAPL section 541 must be considered in light of the normal statutory limitation period for adverse possession in New York. An owner of property has 10 years within which to enter the premises and eject an adverse possessor. See N.Y. Civ. Prac. L. & R. 212(A) (McKinney 1979); see also N.Y. Real Prop. Acts. Law [sections] 501 (McKinney 1979) (indicating that an occupant claiming adverse possession must maintain this adverse possession for 10 years). Therefore, the presumption in RPAPL section 541 potentially alters the normal 10 year holding period of RPAPL section 501 and CPLR section 212(A). The presumption created in section 541 might be interpreted as a toll of the normal limitation period until the cessation of the presumption, namely 10 years. This tolling of the limitation period would effectively double the normal statutory period from 10 to 20 years.

Dispute has centered around this presumption and whether it increases RPAPL section 501's and CPLR section 212(A)'s 10 year holding period. See infra notes 16-59 and accompanying text (examining the conflicting views of the Appellate Departments on this issue).

(6) See Meehan, supra note 3, at 32.

(7) See infra notes 43-59 and accompanying text.

(8) See infra notes 16-42 and accompanying text; see also supra note 5 and accompanying text (discussing the possible tolling effect of section 541).

(9) See Meehan, supra note 3, at 32.

(10) See infra notes 16-59 and accompanying text.

(11) See infra notes 60-96 and accompanying text.

(12) See infra notes 97-123 and accompanying text; see also McKinney's Statutes [sections] 92(a) (McKinney 1971) (indicating that "[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature"); McKinney's Statutes [sections] 125(a) (McKinney 1971) (stating that "[i]f the interpretation to be attached to a statute is doubtful, the courts may utilize legislative proceedings to ascertain the legislative intent").

(13) See infra notes 124-34 and accompanying text. Section 531 governs the relationship between landlords and tenants regarding adverse possession of a tenant against the landlord. Therefore, interpretations of RPAPL section 531 are important to the proper interpretation of RPAPL section 541. McKinney's Statutes [sections] 221(b) (McKinney 1971) ("In accordance with general rules of construction, statutes which [concern the same subject matter] are to be construed together as though forming part of the same statute.").

(14) See infra notes 135-77 and accompanying text.

(15) See infra notes 178-202 and accompanying text.

(16) 474 N.Y.S.2d 527 (App. Div. 2d Dep't 1984).

(17) Id. at 529.

(18) Id.

(19) Id. at 531.

(20) Id. at 529.

(21) Id.

(22) Id. Anna filed a cross-claim against her brother to determine the validity of her one-third interest in the property. The Second Department noted that this claim, in effect, made Anna a co-plaintiff. Id. at 530.

(23) It should be noted that it was practicably impossible for Fred to adversely possess the entire premises because his sister, Anna, lived with him and was also in possession. Id. at 529. Therefore, Fred could not establish the claim of exclusive possession which is required under adverse possession law. See supra note 1. The Second Department considered only Lydia's claim stating that the record had no evidence which could even "colorably" support a claim against Anna. Kraker, 474 N.Y.S.2d at 537.

(24) Id. at 534.

(25) Id. (citations omitted). The Second Department's holding reinforces New York's common law requirements of ouster and notice. See infra notes 60-96 and accompanying text.

(26) Kraker, 474 N.Y.S.2d at 534. Again, the Second Department has reiterated the requirements which were developed under New York's common law and relied upon these requirements to interpret the meaning of RPAPL section 541. See infra notes 76-96 and accompanying text.

(27) Kraker, 474 N.Y.S.2d at 530-31.

(28) Id. at 534.

(29) Id. The Second Department has again adopted New York's common law approach to this problem. See infra notes 73-75 and accompanying text (discussing the duty of a possessing tenant to pay reasonable expenses).

(30) Id. at 534. The 1976 conveyance was clearly an act contrary to the plaintiff's title because Frederick attempted to convey the whole piece instead of simply his one-third interest. New York common law recognized the conveyance of a whole interest in the property as an ouster of cotenants. See infra note 65 and accompanying text.

(31) This decision is an excellent example of the impact of New York's common law on this area of the law. The Second Department stated many of the same rules that the courts of New York have been reiterating for nearly two hundred years. See infra notes 60-97 and accompanying text (discussing New York common law).

(32) 478 N.Y.S.2d 720 (App. Div. 2d Dep't 1984).

(33) Id. at 721.

(34) Id.

(35) Id.

(36) Id.

(37) Id. at 721-22 (citations omitted) (emphasis added).

(38) Id. Consecutively means that the holding periods follow each other. That is, the 10 years presumed to be for the benefit of all cotenants is followed by a second 10 year period presumed to be adverse if possession remains exclusive.

(39) Ouster requires some showing that the possessing cotenant intends to exclude or deny the rights of his fellow cotenants. Ouster consists of acts hostile and inconsistent to a fellow cotenant's title. See 4 George W. Thompson, Thompson on Real Property [sections] 1811 (1979) (discussing ouster requirements). Ideally, this act would be the possessing cotenant communicating his intention, either in writing or orally, to possess adversely against his fellow cotenants. In that case, the other cotenants would surely defend their title. However, since such express notice is not always given, often at issue is whether a presumed or inferred ouster exists. To presume ouster in New York, the acts of the possessing cotenant must be so open, notorious, hostile, and public that the non-possessing cotenants presumably know that their cotenant is adversely possessing against them. See also infra notes 77-91 and accompanying text (examining the common law concept of presumed ouster). It is difficult to presume an ouster by a cotenant because he or she has every right to use the property. RPAPL section 541 was created to overcome the difficulties of this common law problem by creating a set statutory period. (40) Kolb, 478 N.Y.S.2d at 722. The procedural posture of this case may be significant. The appeal in Kolb arose from the denial of a motion for summary judgment. Id. at 721. Therefore, the record, upon which the opinion was based, may have been sparse regarding the issue of ouster.

(41) See infra notes 97-123 and accompanying text.

(42) See infra notes 60-96 and accompanying text.

(43) See Article Ten Properties, Ltd. v. Kocak, 564 N.Y.S.2d 558, 560 n.1 (App. Div. 3d Dep't 1990).

(44) 564 N.Y.S.2d 558 (App. Div. 3d Dep't 1990).

(45) Id. at 559.

(46) Id. at 560.

(47) Id. at 559.

(48) Id.

(49) Id. at 560. The defendant's "adverse" conduct was so strong that the Third Department might have been indicating that an ouster of the plaintiff occurred when the plaintiff failed to seek an accounting or possession. However, there is no mention of a presumed ouster in this case. Instead, the Third Department explicitly declined to follow the Second Department and possibly the intent of RPAPL section 541. Id at 560 n.1. The Third Department could have avoided this unfortunate result by narrowly construing the case as one in which presumptive ouster had occurred. Such a decision would have found support under both the statute, which allows for ouster, and New York common law, which explicitly addresses presumptive ousters. However, it can be argued that RPAPL section 541 was a tool to eliminate the wide discrepancies between presumed ouster cases. RPAPL 541 was a set rule which allowed a non-possessing cotenant to have confidence that a possessing cotenant was not holding adversely. See infra notes 77-91 and accompanying text (discussing presumptive ouster under New York common law).

(50) Id. at 559-60.

(51) Id. at 560.

(52) Id. (emphasis added). The procedural posture of Kocak differs from Kolb since a jury resolved Kocak. Id. at 559. However, the Third Department's reasoning may have incorrectly asserted that RPAPL section 541 was enacted only to create a presumption that a cotenant holds for the benefit of another cotenant which can be rebutted by a showing of adverse possession. The Third Department never addressed the question of ouster and perhaps it meant ouster, when it stated "adverse possession." See id. at 559-60. Again, it can be argued that RPAPL section 541 was designed to eliminate presumed ouster and the problems which necessarily flowed from it. See supra note 49.

Regardless, New York common law created the presumption that a cotenant held for the benefit of fellow cotenants such that the legislature had no need to enact a statute unless it was attempting to codify the common law. See infra notes 60-61 and accompanying text (discussing the presumption covering tenancy in common under the common law).

(53) 579 N.Y.S.2d 219 (App. Div. 3d Dep't 1992).

(54) Id. at 219.

(55) Id.

(56) Id.

(57) Id. at 220.

(58) Id. at 221.

(59) Concurrent means that the 10 year presumptive period and the 10 year prescriptive period run together. Compare supra note 38 and accompanying text.

(60) See Jackson v. Brink, 5 cow. 483, 484 (N.Y. Sup. Ct. 1826) (holding that "the possession of one tenant in common, in general, enures [sic] to the benefit of all"); see also Florence v. Hopkins, 46 N.Y. 182, 186 (1871) (holding that possession by one cotenant inures to the benefit of all); Humbert v. Trinity Church, 24 Wend. 587, 597 (N.Y. 1840) (holding that a cotenant is presumed to hold for himself and his cotenants); Tarbox v. Hulett, 75 N.Y.S.2d 37, 38 (App. Div. 3d Dep't 1947) (holding that possession by one tenant in common is presumed to be for the benefit of all cotenants); Berger v. Horsfield, 176 N.Y.S. 854, 856 (App. Div. 2d Dep't (holding that possession by one cotenant is possession by all cotenants); Knowlton Bros. v. New York Air Brake Co.' 154 N.Y.S. 675, 682 (App. Div. 4th Dep't 1915) (holding that possession by one cotenant is deemed possession and entry by all cotenants); Merolla v. Lane, 107 N.Y.S. 439, 443 (App. Div. 1st Dep't 1907) (holding that the possession by one cotenant is generally the possession of the other cotenants). All jurisdictions have adopted this rule. See Thompson, supra note 39, [sections] 1810.

(61) Edwards v. Bishop, 4 N.Y. 61, 65 (1850).

(62) See Jackson, 5 Cow. at 484 (stating that even though one cotenant may adversely possess if he or she ousts the other cotenant, such ouster will not be inferred from sole possession "unless accompanied with some notorious act, or claim, which is sufficient to give character to the possession"); see also Clapp v. Bromagham, 9 Cow. 530, 552-53 (N.Y. 1827) (holding that the English rule required actual ouster or forcible dispossession of a cotenant); Berger, 176 N.Y.S. at 856 (requiring actual ouster and listing several examples of such an ouster); Merolla, 107 N.Y.S. at 443 (holding that there must be express evidence of ouster in order to allow an adverse possession claim); Kathan v. Rockwell, 23 N.Y. Sup. Ct. 90, 91-92 (App. Div. 3d Dep't 1878) (requiring an actual ouster); Trustees of the Church and Soc'y of North Greig v. Johnson, 66 Barb. 119, 123-24 (N.Y. Sup. Ct. 1867) (listing several acts which might constitute an ouster).

The requirement of an actual ouster is common to the majority of states. See Thompson, supra note 39, [sections] 1811; see also infra notes 178-97 and accompanying text.

(63) 87 N.Y. 348 (1882).

(64) Id. at 353.

(65) See Florence v. Hopkins, 46 N.Y. 182, 186 (1871); see also Millard v. McMullin, 68 N.Y. 345, 352 (1877) (finding an ouster where cotenant purchased from third party and assumed exclusive ownership); Jackson, 5 Cow. 483 at 484-85 (holding that the purchase of cotenants' interest at a public sale constituted an ouster); Tarplee v. Sonn, 96 N.Y.S. 6, 8-9 (App. Div. 4th Dep't 1905) (purchasing of interest at public sale constituted an ouster); North Greig, 66 Barb. at 124 (stating that the sale of the whole premises coupled with statements of ownership was sufficient to constitute an ouster). But see Edwards v. Bishop, 4 N.Y. 61, 65 (1850) (receiving a deed from another cotenant only conveys the grantor's interest in the property and does not oust remaining cotenants); Golder v. Fowler, 188 N.Y.S. 805, 807 (App. Div. 2d Dep't 1921) (holding that where a grantee is on notice of a tenancy relationship, the conveyance of a full warranty deed by one cotenant to the grantee will not constitute an ouster); Kathan, 23 N.Y. Sup. Ct. at 92 (holding that a deed which conveyed only a partial interest to grantee was not an ouster); Janes v. Janes, 191 N.Y.S. 508, 512-13 (County Ct. 1919) (holding that a conveyance to a grantee which was not recorded could not constitute an ouster where the grantor-cotenant remained in possession after the conveyance), aff'd, 142 N.E. 326 (N.Y. 1923).

(66) Culver, 87 N.Y. at 354.

(67) See id.; see also Schenck v. Egbert, 107 N.Y.S. 787, 789-92 (Sup. Ct. 1907) (finding that a cotenant who exclusively received rents for a period of 36 years had ousted his cotenants and established adverse possession). But see Berger v. Horsfield, 176 N.Y.S. 854, 856 (App. Div. 2d Dep't 1919) (holding that the exclusive possession and receipt of rents from the property for a period of 83 years was not sufficient to establish an ouster of a cotenant); Stoddard v. Weston, 6 N.Y.S. 34, 35 (App. Div. 3d Dep't 1889) (holding that the actions of a cotenant in renting and receiving rents were not inconsistent with the title of other cotenants).

(68) Jackson v. Tibbits, 9 Cow. 241, 253 (N.Y. Sup. Ct. 1828).

(69) Culver, 87 N.Y. at 354-55.

(70) See Trustees of the Church and Soc'y of North Greig v. Johnson, 66 Barb. 119, 124 (N.Y. Sup. Ct. 1867); see also H & Y Realty Co. v. Baron, 597 N.Y.S.2d 343, 345 (App. Div. 1st Dep't 1993) (installing a locked rolling steel gate without providing a key for a cotenant constituted an ouster); Johnston v. Martin, 583 N.Y.S.2d 615, 617 (App. Div. 3d Dep't 1992) (holding that changing the locks and informing the cotenant of the different locks constituted an ouster). But see Perkins v. Volpe, 536 N.Y.S.2d 845, 846 (App. Div. 2d Dep't 1989) (holding that changing the locks for security did not constitute an ouster).

(71) See Culver, 87 N.Y. at 354; see also Cole v. Lester, 96 N.Y.S 67, 69-70 (Sup. Ct. 1905) (holding that statements of ownership were admissible to demonstrate the character of the possession).

(72) See Jackson v. Brink, 5 Cow. 483, 484 (N.Y. Sup. Ct. 1826); see also Culver, 87 N.Y. at 353-55 (holding that mere possession does not constitute an ouster); Clapp, 9 Cow. at 556 (holding that ouster could not be proven by mere possession); Kathan, 23 N.Y. Sup. Ct. at 91 (holding that mere possession would not, per se, constitute an ouster).

(73) Clute v. Clute, 90 N.E. 988, 990 (N.Y. 1910). The Court of Appeals held that a cotenant in possession has a duty to pay taxes and the interest on mortgages and also a duty to maintain the other cotenant's title. Id. at 990-91.

(74) Id.

(75) See Kraker v. Roll, 474 N.Y.S.2d 527, 534 (App. Div. 2d Dep't 1984).

(76) See Jackson, 5 Cow. at 484 (stating that even though one cotenant may adversely possess if he or she ousts the other cotenant, such ouster will not be inferred from sole possession "unless accompanied with some notorious act, or claim, which is sufficient to give character to the possession"); see also Clapp, 9 Cow. at 552-53 (holding that the ancient rule required actual ouster or forcible dispossession of a cotenant); Berger v. Horsfield, 176 N.Y.S. 854, 856 (App. Div. 2d Dep't 1919) (requiring actual ouster and listing several examples of such an ouster); Merolla v. Lane, 107 N.Y.S. 439, 443 (App. Div. 1st Dep't 1907) (holding that there must be express evidence of ouster in order to allow an adverse possession claim); Kathan, 23 N.Y. Sup. Ct. at 91-92 (requiring an actual ouster); Trustees of the Church and Soc'y of North Greig v. Johnson, 66 Barb. 119, 123-24 (N.Y. Sup Ct. 1867) (listing several acts which might constitute an ouster).

The requirement of an actual ouster is common to the majority of states. See THOMPSON, supra note 39, [sections] 1811; see also infra notes 178-97 and accompanying text.

(77) See Humbert v. Trinity Church, 24 Wend. 587, 601 (N.Y. 1840) ("[I]f his conduct be such as to satisfy the mind that he means to hold out his co-tenants, and he does in fact exclude them, this is an ouster."); Berger, 176 N.Y.S. at 856 (requiring "notice to the cotenant that he claims possession adversely to the cotenant's title . . . by unequivocal acts, open and public, making the possession so visible, hostile, exclusive, and notorious that notice may fairly be presumed"); Knowlton Bros. v. New York Air Brake Co., 154 N.Y.S. 675, 682 (App. Div. 4th Dep't 1915) (requiring acts of exclusion of other owners which are unequivocal in nature); Stoddard v. Weston, 6 N.Y.S. 34, 35 (App. Div. 3d Dep't 1889) (indicating that "[u]ntil the cotenant out of possession knows, or has reason to know, of this assertion of a hostile title, he may certainly rest in the belief that his co-tenant in possession is not doing him a wrong"); Schenck v. Egbert, 107 N.Y.S. 787, 791 (Sup. Ct. 1907) (holding that although a cotenant's possession can become adverse, stronger evidence is needed to transform such possession into an adverse claim than would normally be required if the person in possession was a stranger); Cole v. Lester, 96 N.Y.S. 67, 70-71 (Sup. Ct. 1905) (holding that acts must be so open and hostile as to justify an inference of knowledge); Janes v. Janes, 191 N.Y.S. 508, 510 (County Ct. 1919) (holding that in order for possession to constitute an ouster "[i]t must be such that knowledge of its existence is brought home to the cotenant" (citation omitted)).

This view of a presumed ouster is widely accepted throughout the country. See THOMPSON, supra note 39, [sections] 1811; see also infra notes 178-97 and accompanying text. (78) 176 N.Y.S. 854 (App. Div. 2d Dep't 1919).

(79) Id. at 855. The court explained the relationship between the cotenants in the following manner:

The plaintiff and his predecessors in title have been in actual possession

of the premises since the 30th day of April, 1834. Before that time the

premises were owned as tenants in common by Thomas, Richard, George, and

Freelove Horsfield. They were all of full age except Freelove, who was an

infant. On the date above mentioned, Thomas, Richard, and George conveyed a

three-quarter interest in the premises to Isaac Mott. The deed recited that

the remaining one-quarter was owned by Freelove. The plaintiff takes title

through Isaac Mott, and the defendants have been awarded by the judgment

the one-quarter interest of Freelove as her heirs, being the descendants of

her three brothers.

Id.

(80) Id. at 856.

(81) See Vandyck v. Van Beuren, 1 Cai. R. 84, 90 (N.Y. Sup. Ct. 1803) (holding that exclusive possession for a period of 50 years amounted to an ouster); see also Jackson v. Whitbeck, 6 Cow. 632, 634 (N.Y. Sup. Ct. 1827) (holding that exclusive and uninterrupted possession by one cotenant for 40 years required a presumption of an ouster); Zapf v. Carter 75 N.Y.S. 197, 200 (App. Div. 4th Dep't 1902) (holding that after a long period of exclusive possession an ouster may be presumed if other evidence will support such a finding); Abrams v. Rhoner, 51 N.Y. Sup. Ct. 507, 510 (App. Div. 1st Dep't 1887) (stating "[ale ouster will be presumed after an exclusive possession and receipt of the entire profits, with a claim of right to the whole thereof, for twenty-one years"); Woolsey v. Morss, 26 N.Y. Sup. Ct. 273, 274 (App. Div. 3d Dep't 1879) (stating that "'[w]here one tenant in common enters on the whole, and takes the profits of the whole, and claims the whole exclusively for twenty-one years, the jury ought to presume an actual ouster, though none be proved'" (citations omitted)); Janes, 191 N.Y.S. at 510-11 (holding that where a cotenant occupied property for 40 years an ouster might be presumed if other evidence supports such a conclusion), aff'd, 142 N.E. 326 (N.Y. 1923). But see Jackson v. Tibbits, 9 Cow. 241, 252 (N.Y. Sup. Ct. 1828) (holding that a short period of 25 years of exclusive and continuous possession was not sufficient to support a presumption of ouster); Kennedy v. Smith, 191 N.Y.S. 214, 218 (Sup. Ct. 1921) (holding that 59 years of possession and receipt of profits was not sufficient to establish an ouster since a cotenant-mother would hold adversely against her cotenant-children without explicit notice), rev'd, 198 N.Y.S 655 (App. Div. 3d Dep't), aff'd, 143 N.E. 724 (N.Y. 1923).

(82) 75 N.Y.S. 197 (App. Div. 4th Dep't 1902).

(83) Id. at 199 (quotation omitted).

(84). Id. (emphasis added) (citations omitted).

(85) See supra note 83 and accompanying text. This view coincides with the Third Department's view of RPAPL section 541. See supra notes 43-59 and accompanying text.

(86) See supra note 84 and accompanying text. In other word s, the Zapf court indicated that adverse possession against a cotenant requires something more than the normal prescriptive statutory period. This view aligns itself with the Second Department's interpretation of RPAPL section 541. See supra notes 16-42 and accompanying text.

(87) Zapf, 75 N.Y.S. at 198.

(88) Id. at 200.

(89) Id.

(90) Id. at 201.

(91) Id. at 200.

(92) See supra notes 60-61 and accompanying text.

(93) See supra note 62 and accompanying text.

(94) See supra notes 62-71 and accompanying text.

(95) See supra notes 77-91 and accompanying text.

(96) See supra notes 81-91 and accompanying text. In fact, the problem of a presumed or inferred ouster has never been satisfactorily answered by any jurisdiction. The best rule is that the determination is sui generic. See Thompson, supra note 39, [subsections] 1812-1814.

(97) Act of Mar. 18, 1949, ch. 184, 1949 N.Y. Laws 368, at 369.

(98) Id.

(99) Recommendation of the Law Revision Commission to the 1975 Legislature Relating to the Presumption of Nonadverse Possession of Tenants and Tenants in Common, Leg. Doc. No. 65P, at 6 (1975) (emphasis added) [hereinafter Recommendation].

(100) This is consistent with the Second Department's interpretation of RPAPL section 541. See supra notes 16-42 and accompanying text.

(101) See supra note 97 and accompanying text.

(102) Act of Apr. 4, 1962, ch. 312, 1962 N.Y. Laws 1953, at 1971.

(103) Id.

(104) 223 N.Y.S.2d 763 (Sup. Ct. 1961), rev'd, 239 N.Y.S.2d 29 (App. Div. 2d Dep't 1963), aff'd, 204 N.E.2d 499 (N.Y. 1965).

(105) Id. at 767.

(106) Id. at 767-68.

(107) Id. at 767.

(108) 224 N.Y.S.2d 33 (Sup. Ct. 1961).

(109) See supra notes 16-59 and accompanying text.

(110) Dickson, 224 N.Y.S.2d at 36-37. In essence, the plaintiff argued that when a cotenant exclusively possesses property for 15 years, the presumption that such possession is for the benefit of the other cotenants ceases. At that point, the possession becomes adverse and the cotenant must hold it for another 15 years (the statutory limitations period) to obtain title adversely. See supra notes 32-42 and accompanying text (discussing the Second Department's interpretation of RPAPL section 541).

(111) Id. at 37. Like the plaintiff, the defendant agreed that after 15 years the presumption of non-adverse possession ceased. However, unlike the plaintiff, the defendant argued that after 15 years the end of the presumption would relate back to the beginning of the possession. As a result, 15 years of possession would both extinguish the presumption and satisfy the statutory limitations period. See supra notes 43-59 and accompanying text (discussing the Third Department's interpretation of RPAPL section 541). (112) Dickson, 224 N.Y.S.2d at 37.

(113) Id. at 37-39.

(114) See supra notes 102-03 and accompanying text.

(115) 256 N.Y.S.2d 888 (Sup. Ct. 1965).

(116) Id. at 893. This view mirrors the recent interpretations of RPAPL section 541 by the Third Department which held that the holding periods run concurrently. See supra notes 43-59 and accompanying text.

(117) In the foregoing text, the Legislature deleted words or phrases with a line through them while it added the bracketed words or phrases.

(118) Act of July 1, 1975, ch. 375, [sections] 2, 1975 N.Y. McKinney's Session Laws 540, at 541 (codified as amended at N.Y. Real Prop. Acts. Law [sections] 541 (McKinney 1979)).

(119) See Legislative Bill Jacket to Act of July 1, 1975, ch. 375, 1975 McKinney's Session Laws 540 (Letter from Minority Leader to Minority Senate Membership regarding Senate Bill S.2687) ("This bill would make clearer the intent and purpose of the statutes which mandate that the 10 year adverse possession period should be added to the time period of non adverse possession before title can be perfected by such concept."); see also Legislative Bill Jacket to Act of July 1, 1975, ch. 375, 1975 McKinney's Session Laws 540 (Memorandum of June 16, 1975, from the State Attorney General, to the Governor) (indicating that the amendment was intended to correct the misinterpretation of RPAPL section 541 by lower courts); Legislative Bill Jacket to Act of July 1, 1975, ch. 375, 1975 McKinney's Session Laws 540 (Memorandum from the Law Revision Commission) (stating that the intent of the changes in RPAPL section 541 was to correct erroneous constructions of the statute by lower courts); Recommendation, supra note 99, at 1-2 (stating that the ambiguity in the statute must be removed to correct lower court errors in application of the statute).

(120) See Letter from Minority Leader to Minority Senate Membership regarding Senate Bill S.2687, supra note 119, at 541. In support of the bill, the letter stated:

The statutory presumption of non-adverse possession distinguishes such

possessors, whose possession is legally based, from strangers who claim

initially by adverse possession. These statutes grant to a landlord or

co-owner a greater protection against loss of title by adverse possession

where such land is occupied by a holdover tenant or co-owner then where

such land is occupied by a stranger.

Id. In its approval of the Bill, the Legislature stated that the bill was "intended to make clear that the ten year time period provided in CPLR 212(a) is in addition to the time period set forth in Section 541." Legislative Bill Jacket to Act of July 1, 1975, ch. 375, 1975 McKinney's Session Laws 540 (Memorandum from Senator Gordon and Assemblyman Lehner to the Committee on State Legislation of the Bar Association of New York City).

(121) See Recommendation, supra note 99, at 7-8 (explicitly citing Dickson and Graham as erroneous decisions); Memorandum from Senator Gordon and Assemblyman Lehner to the Committee on State Legislation of the Bar Association of New York City, supra note 120 (indicating that Dickson and Graham misapplied section 541).

(122) See Act of July 1, 1975, ch. 375, [sections] 2, 1975 N.Y. McKinney's Session Laws 540, at 541 (codified as amended at N.Y. Real. Prop. Acts. Law [sections] 541 (McKinney 1979)); Letter from Minority Leader to Minority Senate Membership regarding Senate Bill S.2687, supra note 119 (stating "[t]hese statutes grant to a . . . co-owner a greater protection against loss of title by adverse possession").

(123) Act of July 1, 1975, ch. 375, [sections] 2, 1975 N.Y. McKinney's Session Laws 540, at 541 (codified as amended at N.Y. Real Prop. Acts. Law [sections] 541 (McKinney 1979)).

(124) Act of July 1, 1975, ch. 375, [sections] 1, 1975 McKinney's Session Laws 540, at 540.

(125) In the foregoing text, the legislature deleted the words or phrases with a line through them while bracketed words or phrases were added.

(126) Act of July 1, 1975, ch. 375, [sections] 1, 1975 N.Y. McKinney's Session Laws 540, at 540 (codified as amended at N.Y. Real Prop. Acts. Law [sections] 531 (McKinney 1979)).

(127) Recommendation, supra note 99, at 4.

(128) Id.

(129) 515 N.Y.S.2d 683 (App. Div. 4th Dep't 1987), aff'd, 525 N.E.2d 750 (N.Y. 1988).

(130) Id. at 684-85.

(131) Id. In this case, the landlord leased the property to the plaintiff in 1969. Id. at 683. The plaintiff occupied part of the land which was outside the description of the lease. Id. In 1974, the plaintiff bought the premises, but continued to occupy the property which was beyond the lease's description. Id. In 1984, the plaintiff asserted adverse possession over that additional property. Id. The Fourth Department held that the original occupancy had been at the permission of the landlord. Id. at 685. Therefore, a 20 year holding was required (i.e. 1969-1989) and the action was barred because the statutory period for the adverse possession had not yet run. Id.

(132) 539 N.Y.S.2d 942 (App. Div. 1st Dep't), appeal dismissed, 545 N.E.2d 871 (N.Y. 1989).

(133) Id. at 943 (citations omitted). The lease in this case expired in 1977 and the tenants maintained their occupancy and ceased to pay rentals. Id. at 942. However, the tenants appropriated the entire apartment building for their own use by changing the locks and renting and receiving profits from the other units. Id. at 942-43. The action for adverse possession was commenced in 1986. Id. at 943. Therefore, no matter what standard the First Department applied, the claim had to fail since the tenant had not even satisfied the 10 year period.

(134) This is particularly true when one considers the extreme factual situation in Innis. The First Department may have been applying a common law concept of presumptive ouster based upon actions which are so open and notorious that the court could infer knowledge on the part of the landlord. Although this case is consistent with the concept of presumptive ouster, the Legislature drafted RPAPL section 531 to eliminate the ambiguity of that common law concept. Furthermore, the statements of the First Department are misleading and incorrect in regard to the proper application of RPAPL section 531.

(135) 478 N.Y.S.2d 720 (App. Div. 2d Dep't 1984). As stated previously, the defendant acquired the plaintiff-wife's interest in the land at a foreclosure sale. Id. at 721. He therefore possessed with the plaintiff-husband as cotenants. This possession lasted for 12 years, from 1970 to 1982. Id.

(136) Appellant's Brief at 4, Kolb (No. 2-84-0930).

(137) 256 N.Y.S.2d 888 (Sup. Ct. 1965). (138) Appellant's Brief at 5, Kolb (No. 2-84-0930).

(139) See supra notes 117-23 and accompanying text.

(140) Respondent's Brief at 3, Kolb (No. 2-84-0930).

(141) See supra notes 2-5 and accompanying text.

(142) See supra notes 2-5, 60-96 and accompanying text.

(143) Respondent's Brief at 3, Kolb (No. 2-84-0930).

(144) Kolb, 478 N.Y.S.2d at 721-22.

(145) Id.

(146) 564 N.Y.S.2d 558 (App. Div. 3d Dep't 1990). As discussed previously, this case involved an interest which had been split at a tax sale. Id. at 559. The plaintiff acquired his one-half interest in the property in 1974. Id. In 1985, the plaintiff sought a partition of the property to which the defendant asserted the defense of adverse possession. Id.

(147) Appellant's Brief at 18, Article Ten (No. 3-90-1338).

(148) Id. at 21.

(149) Id. at 20.

(150) Id. at 21 (emphasis in original).

(151) See supra notes 38-41 and accompanying text.

(152) See supra notes 97-123 and accompanying text.

(153) See supra note 122 and accompanying text.

(154) Appellant's Brief at 28, Article Ten (No. 3-90-1338). The plaintiff also challenged the character of the defendant's possession under normal adverse possession law claiming that there was a complete failure to meet the necessary requirements. Id. at 23-36.

(155) See id.

(156) Respondent's Brief at 11, Article Ten (No. 3-90-1338).

(157) Id. at 11-12.

(158) Id. at 12.

(159) Id.

(160) Id.

(161) Id.

(162) See supra note 121 and accompanying text.

(163) See Article Ten Properties, Ltd. v. Kocak, 564 N.Y.S.2d 558, 560 n. 1 (App. Div. 3d Dep't 1990).

(164) 579 N.Y.S.2d 219 (App. Div. 3d Dep't 1992). This case involved a dispute between family members who inherited land as cotenants through intestate succession. Id. at 220. The plaintiff-appellant (plaintiff), by virtue of an alleged oral conveyance of the property by the parties' father, acquired a parcel of land from his cotenant brothers, the defendants-respondents (defendants). Id The deed did not cover the amount of land which the plaintiff claimed to possess. Thus, the plaintiff asserted a claim of adverse possession for the remainder. Id. The defendants relied upon the Second Department's interpretation of RPAPL section 541 and prevailed in the lower court because twenty years had not elapsed. Id.

(165) Appellant's Brief at 14, Porter (No. 3-91-1301) (emphasis in original).

(166) Id. at 15.

(167) Id. at 17.

(168) N.Y. Real Prop. Acts. Law [sections] 541 (McKinney 1979).

(169) Appellant's Brief at 15-17, Porter (No. 3-91-1301).

(170) Respondent's Brief at 13-14, Porter (No. 3-91-1301).

(171) Id. at 15.

(172) Id.

(173) 478 N.Y.S.2d 720 (App. Div. 2d Dep't 1984).

(174) Respondent's Brief at 15-16, Porter (No. 3-91-1301).

(175) N.Y. Real Prop. Acts. Law [sections] 541 (McKinney 1979).

(176) Recommendation, supra note 99.

(177) Id. (178) N.Y. Civ. Prac. L. & R. [sections] 212(a) (McKinney 1979), N.Y. Real Prop. Acts. Law [sections] 501 (McKinney 1979).

(179) See supra notes 16-59 and accompanying text (discussing the split between the Second and Third Departments as to the proper holding period under RPAPL section 541).

(180) 68 Pa. Cons. Stat. Ann. [sections] 81 (1994).

(181) Lamon v. Rodgers, 42 Pa. Super. 437 (1910). Today, Pennsylvania Courts maintain the concept of presumptive ouster which was applied under New York common law, meaning that the possession of the premises coupled with a receiving of rents for the statutory period without an acknowledgment of a fellow cotenant will amount to a presumptive ouster. Id. at 440; see supra notes 77-91 and accompanying text (discussing New York's presumed ouster rule).

(182) Mass. Gen. L. ch. 260, [sections] 21 (1992).

(183) Allen v. Batchelder, 459 N.E.2d 129 (Mass. App. Ct. 1984). This case involved exclusive possession and reception of rents and profits for over 90 years. The court held that an actual ouster was presumed and adverse possession established. Id. at 132. The court also considered the different lengths of time which were required to establish a presumption of actual ouster. The time period varied from 30 to 47 years. Id. This case clearly extended beyond that period. Id.

(184) Vt. Stat. Ann. tit. 12, [sections] 501 (1973).

(185) Chandler v. Bicker, 49 Vt. 128 (1876). Vermont law requires a demonstration of an actual ouster in the form of notice to the cotenant either verbal oral, or through acts which are of such character that a knowledge can be presumed. Id at 131.

(186) N.J. Rev. Stat. [subsections] 2A:14-30 to 2A:14-31 (1987).

(187) Heck v. Cannon, 95 A.2d 23 (N.J. Super. Ct. Ch. Div. 1953). New Jersey requires an actual ouster and it is a question of evidence as to whether particular acts were of such an exclusive, open and notorious nature as to constitute an ouster and a beginning of the adverse period. Id. at 25.

(188) Minn. Stat. [subsections] 541.02 (1988).

(189) See Morken v. Morken, 375 N.W.2d 576, 578 (Minn. Ct. App. 1985) (holding that the "appropriation of crops, rents, and profits, payment of all taxes, and exclusion of the other cotenants from the benefits of ownership for 37 years...constituted an implicit ouster").

(190) Va. Code Ann [subsections] 8.01-236 (Michie 1992).

(191) See Rutledge v. Rutledge, 132 S.E.2d 469, 474 (Va. 1963) (requiring an actual ouster of a cotenant such that the non-possessing cotenant has knowledge that the possessing cotenant is holding adversely).

(192) Tex. Civ. Prac. & Rem. Code Ann. [subsections] 16.026 (West 1986).

(193) See Horrocks v. Horrocks, 608 S.W.2d 733, 737 (Text Civ. App. 1980) (holding that exclusive possession for 34 years did not constitute adverse possession because it was not clear and unequivocal notice to non-possessing cotenants that their title was in danger).

(194) Fla. Stat. Ann. [sections] 95.12 (West 1982).

(195) See Barrow v. Barrow, 527 So. 2d 1373, 1376 (Fla. 1988) (stating that there can be no adverse possession or ouster unless the possessing cotenant actually communicates his intention to hold adversely to his fellow cotenants).

(196) Cal. Civ. Code [subsections] 318 (West 1991).

(197) See Johns v. Scobie, 86 P.2d 820, 823 (Cal. 1939) (requiring actual or constructive knowledge that a cotenant is holding adversely before the limitation period can begin to run).

(198) For a broad discussion of adverse possession between co-tenants, see W.W. Allen Annotation, Adverse Possession Between Cotenants, 82 A.L.R.2d 1 (1962).

(199) See Berger v. Horsfield, 176 N.Y.S. 854 (App. Div. 2d Dep't 1919), see also Horrocks v. Horrocks, 608 S.W.2d 733,737 (Text Civ. App. 1980) (holding that 34 years of exclusive possession not sufficient to presume an ouster).

(200) Allen v. Batchelder, 459 N.E.2d 129 (Mass. App. Ct. 1984).

(201) Morken v. Morken, 375 N.W.2d 576 (Minn. Ct. App. 1985).

(202) Lamon v. Rodgers, 42 Pa. Super. 437 (1910).
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Author:Legg, Jason J.
Publication:Albany Law Review
Date:Jun 22, 1996
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