Co-tenants own real property together, with each co-tenant having an “equal right to possess and enjoy” the property as if they owned it alone. However, in certain situations, a co-tenant can use the doctrine of adverse possession to become the sole owner of the real property, eliminating the interest of the co-tenant. Adverse possession is a legal principle whereby someone who doesn’t have title to property can gain the right to it by openly and continuously occupying it. How and when the doctrine applies was the subject of a recent decision of the New York Court of Appeals in Golobe v. Mielnicki. The Court addressed an issue of first impression (meaning it has not been addressed by the Court before): “Whether a co-tenant may adversely possess property when neither co-tenant is aware of the existence of the co-tenancy?”
The property involved in the case, a three-story building in Manhattan, was owned by Dorothy Golobe who died in 1992.
The decedent’s nephew, John Golobe, was appointed as the Estate administrator. He informed the Court that his father, the decedent’s brother, named Zangwill, was the only surviving heir of the decedent presenting the testimony of a long-time family friend as evidence. John also stated that the decedent’s other brother, Yale Golobe had died several years prior. Zangwill renounced his interest in the building, and John Golobe possessed and maintained the building from that time onward. However, 26 years later, in 2018, John Golobe learned that Yale Golobe did not predecease his sister Dorothy.
Upon learning of his mistake, John Golobe brought this action against the successor-in-interest of Yale Golobe (who had died by the time the action was brought), asserting that he is the sole owner of the building based on adverse possession.
Yale’s successor counterclaimed against John Golobe, asserting fraud and breach of fiduciary duty regarding his conduct as administrator. The Court quickly rejected these claims, as there was no showing that John Golobe had acted with the intent to commit fraud, and that he had properly investigated the existence of other heirs by relying on the long-time family friend.
The more interesting part of the Court’s decision addressed John Golobe’s adverse possession claim. In order to make a claim for adverse possession, the claimant’s occupation of the property must be:
- Hostile and under a claim of right (meaning based on a reasonable belief of ownership);
- Actual;
- Open and notorious;
- Exclusive; and
- Continuous for at least ten years.
There was no dispute here about actual, exclusive and continuous occupancy for more than ten years. The parties’ dispute focused on the elements of hostility and open and notorious occupation.
The element of hostility was complicated by the fact that co-tenants each have the right to full use of the property. However, Section 541 of New York’s Real Property Actions and Proceedings Law (RPAPL) addresses this complication. The section provides that one co-tenant’s exclusive use of the property is presumed to be non-adverse for ten years. After the ten-year point, the presumption of non-adversity expires. At that point, the exclusive occupancy, when combined with the “usual acts of ownership” (such as leasing, collecting rent, etc.), is presumed to be hostile.
The Court found that the existence of a mutual mistake about the true ownership of the property is not sufficient to rebut the presumption of hostility.
The Court also stated that once the RPAPL Section 541 applied to reverse the presumption that a co-tenant’s use is non-adverse, claims of adverse possession between co-tenants are analyzed the same as any other claim. It then easily found that Mr. Golobe satisfied the standard of open and notorious use.
While the Court recognized the view that this result is inequitable (as John Golobe essentially benefits from his own mistake to the tune of 50% of a Manhattan building), it held that this was properly mitigated by the extra ten-year waiting period required by the RPAPL Section 541.
The takeaway from the case is that courts expect property owners to investigate and enforce their rights to avoid losing them. If you are involved in a property or estate dispute, contact one of our attorneys to discuss how we can help.