Hogan v. Kelly: Second Department Agrees with the Third and Fourth Departments—2008 Adverse Possession Amendments Are Not to Be Retroactively Applied
By Danny Ramrattan
In Hogan v. Kelly, 1 defendants Dorothy and Camille Kelly moved in with Ferdinand Powell (“decedent”) in September 1992 to assist him because of his old age and poor health.2 Decedent held title to the property he and defendants occupied. Defendants thereafter lived with decedent until his death on March 26, 1995. Decedent died intestate. His sole heir was his daughter Carmen Powell, a Panamanian citizen living outside the United States. Although Carmen Powell was decedent’s sole heir, decedent’s brother executed a deed conveying title to the property to Dorothy Kelly on March 7, 1996. The deed conveying title was subsequently recorded on June 27, 1996. From 1996 onward, defendants resided at the property.3
During the summer of 2008, decedent’s sole heir—Carmen Powell— traveled to the United States for the fi rst time, and allegedly discovered that her father had owned real property.4 In September 2009, plaintiff was appointed administrator of decedent’s estate. Upon his appointment, plaintiff commenced an action to determine who had ownership of the property. Defendants moved for summary judgment dismissing the complaint and declaring themselves owners of the premises because they adversely possessed it. Plaintiff cross-moved for summary judgment declaring him to be the owner of the premises. On June 4, 2010, the Supreme Court, Kings County granted defendants’ motion for summary judgment and denied plaintiff’s cross motion.5
The Second Department began its analysis of the parties’ claims by noting that to establish a claim of adverse possession a claimant must prove “that possession of the property was: (1) hostile and under a claim of right; (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period.”6 Because the Legislature enacted changes to RPAPL Article 5 in 2008,7 the question raised was what was necessary to satisfy the “claim of right” requirement.
The court found that prior to the 2008 amendments, parties claiming adverse possession could satisfy the “claim of right” requirement even if they had actual knowledge of the true owner at the time of the possession.8 In contrast, new RPAPL §501 provided a statutory definition of the “claim of right” requirement—namely “a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be.”9 The 2008 amendments to Article 5 took effect on July 7, 2008, and apply to all claims fi led on or after the effective date of the amendments.10
Plaintiff contended that under the 2008 amendments, defendants did not acquire title to the premises by adverse possession because they were aware that Ms. Powell was the rightful heir, and therefore could not have had a reasonable basis to believe that the property belonged to them.11 The Second Department disagreed. Although the action was commenced after the effective date of the 2008 amendments, the court concluded that the amendments cannot be retroactively applied to deprive a claimant of a property right which vested prior to their enactment. Therefore, the version of the law in effect at the time the purported adverse possession allegedly ripened into title is the law applicable to the claim even if the action was commenced after the effective date of the new legislation. Since title would have vested in the defendants prior to the enactment of the 2008 amendments, the new statutory definition of “claim of right” was not controlling.12 Notwithstanding this ruling, the court found a triable issue of fact existed as to whether the defendants’ possession of the premises was hostile.13
The Second Department’s ruling in Hogan is consistent with prior decisions by the Third14 and Fourth Departments.15 These Departments have ruled that the 2008 amendments to RPAPL Article 5 “cannot be retroactively applied to deprive a claimant of property which [may have] vested prior to their enactment.”16
1. 86 A.D.3d 590, 927 N.Y.S.2d 157 (2d Dep’t 2011).
2. See id. at 591, 927 N.Y.S.2d at 158.
3. See id. at 590-91, 927 N.Y.S.2d at 158. The residential real property was located at 191½ 8th Street in Brooklyn. Id.
4. See id. at 591, 927 N.Y.S.2d at 158.
5. See id.
6. Id. (emphasis added).
7. See Ch. 269, 2008 N.Y. Laws 1.
8. See Hogan, 86 A.D.3d at 592, 927 N.Y.S.2d at 159.
9. See id. (citing N.Y. REAL PROP. ACTS § 501).
10. See id.
11. See id.
12. See id.
13. See id. at 593, 927 N.Y.S.2d at 160. The court looked to whether checks drawn by defendants and payable to the decedent could be considered rent, thereby raising the issue as to whether defendants initially occupied the premises as tenants. If considered tenants, there would be a presumption of nonadversity for 10 years from the last payment. See id.
14. See Barra v. Norfolk S. Ry. Co., 75 A.D.3d 821, 907 N.Y.S.2d 70 (3d Dep’t 2010) (stating a newly enacted or amended legislation cannot disturb a title to an easement that was vested prior to the enactment).
15. Franza v. Olin, 73 A.D.3d 44, 897 N.Y.S.2d 804 (4th Dep’t 2010); see also Perry v. Edwards, 79 A.D.3d 1629, 913 N.Y.S.2d 460 (4th Dep’t 2010) (stating the 2008 amendments are inapplicable when title by adverse possession is gained prior to these amendments).
16. Hogan, 86 A.D.3d at 592, 927 N.Y.S.2d at 159.
Danny Ramrattan is a second year student at St. John’s University School of Law and a Staff Member of the N.Y. Real Property Law Journal https://nysba.org/NYSBA/Publications/Section%20Publications/Real%20Property/Pastissues/Winter2012/Winter2012Assets/RealPropJrnWinter12.pdf