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Legal Possession: What Does It Mean?

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Legal Possession: What Does It Mean? G THE B IN EN V C R H E S A N 8 8 D 8 B 1 AR SINCE WWW. NYLJ.COM VOLUME 262—NO. 24 FRIDAY, AUGUST 2, 2019 Outside Counsel Legal Possession: What Does It Mean? egal possession” is a term 72 (App. Term 1st Dept. 2010) (a right used by the landlord- to self-help specifically reserved in a tenant bar. We recently commercial lease may be utilized only came upon a settlement where it is effectuated “peaceably”). agreement which required In addition, RPAPL §853 provides: ‘Lthe tenant to deliver “broom-clean By And “If a person is disseized, ejected, or legal possession” to the landlord on Thomas C. Steven put out of real property in a forcible Lambert Shackman or before a date certain. In another or unlawful manner, or, after he has situation, a good guy guaranty lim- law. But either way, it is the physical been put out, is held and kept out by ited liability to obligations which fact, the fact of having or holding the force or by putting him in fear of per- accrue prior to the date the tenant property in one’s power and control, sonal violence or by unlawful means, delivers “legal possession” to the that constitutes possession. he is entitled to recover treble dam- landlord. What exactly is meant by Under New York law a person who ages in an action therefor against the “legal possession?” has been in peaceable possession for wrong-doer.” 30 consecutive days or longer may not In New York City, under §26-521 of Let’s Start With 'Possession' legally be removed by force, even if the NYC Administrative Code, it is a Possession of real property is a mat- that person’s possession was obtained misdemeanor to evict or attempt to ter of physical fact. Having the right wrongfully. It is not a question of what evict an occupant of a dwelling unit or legal entitlement to possession, is the person’s underlying rights may be. who has lawfully occupied the dwell- not possession. Possession is a physi- Whether the person is a tenant under ing unit for at least 30 consecutive cal concept, not a right. As stated in a lease, a squatter, or even one who days by “using or threatening the Black’s Law Dictionary, possession is himself entered into possession by use of force….”; and New York Police “the fact of having or holding property unlawful means or by force, a person Department Patrol Guide Procedure in one’s power.” That power means who has been in peaceable possession Number 117-11 states that it is unlaw- having physical dominion and control for at least 30 consecutive days may ful to evict an occupant of a dwelling over the property. That dominion and not legally be removed by force. The unit by methods which involve the use control may be exercised by exclud- owner or other person with a superior or threat of force. ing others, or letting others in. It is right of possession must seek the per- In the context of landlord-tenant the fact of that physical control that son’s eviction by commencing a case law, the key to the entrance door to is possession. That power might be in court. RPAPL §711; Mitchell v. City the premises is considered a symbol exercised legitimately, or it might be of New York, 154 Misc.2d 222 (Civ. Ct. of possession. American Tract Soc. exercised wrongfully. It might be exer- Bx. Co. 1992) (residential occupant in v. Jones, 76 Misc. 236, 134 N.Y.S. 611 cised in a manner that is a violation of possession for at least 30 days shall (App. Term 1st Dept. 1912) (“A key not be removed from possession is the symbol of possession. The fur- THOMAS C. LAMBERT and STEVEN SHACKMAN except in a special proceeding); Sol nishing a tenant with a key to leased are principals of Lambert & Shackman. De Ibiza v. Panjo Realty, 29 Misc.3d premises is a customary incident to FRIDAY, AUGUST 2, 2019 the giving of possession, just as the property, typically commenced by a “Marshal’s Legal Possession” which surrender of the key by the tenant is landlord against a tenant based on states “The landlord has legal posses- evidence of an intent on his part to either non-payment of rent or hold- sion of these premises.” surrender possession.”). Having the ing over after the expiration or early Section 6-4 of The Marshal’s Hand- key gives one the power to enter, and termination of the term. book states “The distinction between the power to exclude others. Thus, Upon the successful prosecution an eviction and a legal possession is where a tenant tenders the keys to of such a proceeding the landlord is that in an eviction both the tenant the landlord, and the landlord accepts awarded a judgment of possession and his or her personal property are them, the tenant is considered to have and a warrant of eviction. RPAPL §747. removed from the premises, where- given up possession and the landlord The warrant commands a New York as in a legal possession the tenant is is considered to have resumed pos- City marshal to “remove all persons, removed from the premises and his session. The physical power has been and…put the [landlord] in full posses- or her property remains under the consensually transferred from the ten- sion.” RPAPL §749. But the judgment care and control of the landlord, as ant to the landlord. only adjudicates the parties’ rights bailee for the tenant. Marshals are with respect to the real property; it required to perform whichever service Inconsistent Definitions makes no adjudication of any rights is desired by the landlord and may Returning to the subject, if “posses- with respect to any personal proper- not restrict themselves to legal pos- sion” is a physical fact, what then is ty in the premises. This gives rise to sessions.” The Marshal’s Handbook “legal possession?” the practical problem of what to do states that what is meant by “legal pos- Often, the term is used colloquially, with that personal property when the session” is “possession of the tenant’s as a way of signifying that the pos- marshal evicts the tenant and deliv- premises with the contents intact.” session is of a person who is legally ers possession of the real property to Section 6-4 of the Marshal’s Hand- entitled to it. While the phrase “lawful book describes “legal possession” possession” might be clearer, when The term has no single, definite, as “mere possession of the property used in this context the meaning is fixed meaning. To the contrary, rather than having the premises deliv- possession that is not in violation of ered to him or her in ‘broom clean’ a statute, a lease, or other agreement, separate authorities (the courts, condition….” and is therefore rightful under the and the Marshal’s Handbook Case Law law. That is perhaps the most obvi- which is issued under authority ous meaning, and the meaning most granted by the Appellate Divi- Another meaning may be found in often ascribed to the phrase. sions) ascribe different mean- case law. At common law, absent an The problem is that the term is also express covenant to the contrary in used in other ways, with varied and ings, which are inconsistent with the lease, at the commencement of inconsistent meanings. one another. the term the landlord was required One of these meanings is exemplified the landlord. The Marshal’s Handbook to deliver to the tenant only such in eviction by city marshal under The gives two options: at the election of possession as the landlord had. The New York City Marshal’s Handbook of the prevailing landlord the marshal landlord was only required to deliver Regulations, which is published by the will either perform an “eviction,” the “right” to possession, by seeing to New York City Department of Investiga- meaning that both the tenant and its it that no one else had a right of pos- tions as part of its supervision of New personal property are removed from session superior to that of the tenant. York City marshals pursuant to Joint the premises, or a so-called “legal Mirsky v. Horowitz, 46 Misc. 257, 92 Administrative Order 453 of the Appel- possession,” meaning that only the N.Y.S. 48 (App. Term 1905). If there late Divisions for the First and Second tenant is removed and its personal was another person who lacked such Judicial Departments. New York Real property is delivered into the care superior right but was nevertheless in Property Actions and Proceedings Law and control of the landlord as bailee actual, physical possession (that is, Article 7 provides for a summary pro- for the tenant. The marshal then posts “possession”), such as a trespasser, ceeding to recover possession of real on the entrance door a notice entitled that was the tenant’s problem. Having FRIDAY, AUGUST 2, 2019 received the right to possession, the Adding to the muddle, neither of (the courts, and the Marshal’s Hand- tenant would be obligated to pay the these “official” meanings seems to book which is issued under authority rent and perform its other obligations have anything to do with the way granted by the Appellate Divisions) under the lease, even if it was unable the term is often used by landlord- ascribe different meanings, which are to obtain possession. tenant practitioners. Where a settle- inconsistent with one another. Neither In the context of those cases, the ment agreement requires the tenant to of those “official” meanings is consis- right that the landlord was required deliver “broom clean legal possession” tent with the most common usage, to deliver, the right to possession, was to the landlord, it is doubtful that the i.e., “lawful possession.” That alone referred to as “legal possession.” The drafter meant to invoke the meaning of should be more than enough to give court said in Mirsky: “on the day on “legal possession” under the Marshal’s any drafter serious pause before using which [the] term was to commence the term, particularly as a measure of someone else was in physical posses- performance.
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