NYSBA WINTER 2015 | VOL. 43 | NO. 1 N.Y. Real Property Law Journal A publication of the Real Property Law Section of the New York State Bar Association IInsidenside • 22008008 AAmendmentsmendments ttoo tthehe NNewew YYorkork • EEmotionalmotional SSupportupport PPetsets iinn AApartmentpartment AAdversedverse PPossessionossession LLawaw BBuildingsuildings • NNewew YYork’sork’s PPublicublic UUsese LLimitationimitation • SSprinklerprinkler SSystemystem CClauseslauses iinn LLeaseseases • DDoesoes FForeclosureoreclosure MMeanean a TTenantenant CCanan • WWhenhen tthehe BBorrowerorrower AAttacksttacks tthehe AActionction WWalkalk AAwayway ffromrom LLeaseease OObligations?bligations? TTimeime AAfterfter TTimeime NEW YORK STATE BAR ASSOCIATION From the NYSBA Book Store > New York Municipal Section Formbook Members get 20% discount* Fourth Edition with coupon code PUB2842N The New York Municipal Formbook, Fourth Edition, is the premier compendium of forms for anyone whose practice touches on municipal law. For years, this has been the book that practitioners turn to for all the forms used in the broad range of issues that involve Author municipal law—agreements, property assessments, FOIL requests, Herbert A. Kline, Esq. bidding, employment, the environment, special districts and zoning. Coughlin & Gerhart LLP If you work as a municipal attorney, this is the go-to guide for the Binghamton, NY forms used in developing local laws; shared services and outsourcing agreements; utility contracts; easements and rights-of-way; highways Editor and fi re districts; and a host of other circumstances. Nancy E. Kline, Esq. Coughlin & Gerhart LLP Binghamton, NY This edition of the New York Municipal Formbook replaces the three-volume forms compendium with a compact book and disk ‘‘The Municipal Formbook is an invaluable package. All of the more than 1500 forms are on the CD, which also and unique publication which includes includes a searchable Table of Forms and Index. The Fourth Edition information not available from any other adds more than 200 new and revised forms. source.’’ Gerard Fishberg, Esq. ‘‘Many more forms than my prior edition. New York Municipal Formbook was compiled by Herbert A. Kline, Bravo! Already found a form I need for Esq., a renowned municipal attorney with more than 50 years’ my village today.’’ experience, and edited by his law partner, Nancy E. Kline, Esq. Chauncey J. Watches, Esq. Order multiple titles to take advantage of our low fl at rate shipping charge of $5.95 per order, regardless Product Info and Prices of the number of items shipped. $5.95 shipping and handling offer applies to orders shipped within the Book and CD | PN: 41603 | 2013 continental U.S. Shipping and handling charges for orders shipped outside the continental U.S. will be based on destination and added to your total. 228 pages | softbound NYSBA Members $155 *Discount good until January 30, 2015 Non-Members $190 For more information, go to www.nysba.org/MunicipalFormbook Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB2842N Table of Contents Message from the Section Chair....................................................................................................... 4 (David L. Berkey) The 2008 Amendments to the New York Adverse Possession Law: Unresolved Ambiguity and Suggestions for Clarity ................................................................ 5 (Vincent Di Lorenzo) From Slums to Stadiums: A Historical Summary of New York’s Public Use Limitation ...............................................13 (Karen M. Richards) Does a New York Foreclosure Create an Opportunity for a Tenant to Walk Away from Its Lease Obligations? (Answer: No) ...............................................................................20 (Louis J. Hait) Apartment Building Residents Get Dogged About Acquiring Emotional Support Pets .............................................................................................................. 24 (Virginia Trunkes) New State Law Requires Sprinkler System Clauses in Leases ..................................................32 (Adam Leitman Bailey and Dov Treiman) BERGMAN ON MORTGAGE FORECLOSURES: When the Borrower Attacks the Action Time After Time ...................................................... 34 (Bruce J. Bergman) NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 3 Message from the Section Chair The Real Property Law Section gram, making downstate practitioners to determine continues to expand its commitment it the seventh whether the differences require differ- and welcome to recently adm itted school to send ent disclosures or forms; and (5) con- attorneys and to law students. To its law students sider proposing legislation to protect encourage attendance at our 2015 to intern with attorneys acting as escrow agents and Summer Meeting, to be held at the members of our their clients, such as legislation that Basin Harbor Club & Resort on Lake Section. would require banks to send escrow Champlain, Vermont, from July 16-18, account monthly statements to both Our Sec- 2015, we are offering a 75% discount the attorney and person for whose tion remains of meeting registration fees and hotel benefi t the account was established. focused on the accommodations to fi rst time attend- We are fortunate to have Gilbert practical needs of its members. The ees and to attorneys admitted less Hoffman and Benjamin Weinstock as Task Force on Title Agent Licens- than 10 years. Mindy Stern will be co-chairs of the Task Force. our Program Chair for the 2015 Sum- ing continues to work with the NYS mer Meeting and assures us that we Department of Financial Services I hope to see many of you at the have a spectacular venue and won- to assure that its regulations do not RPLS CLE program to be held on derful program planned for all. You curtail an attorney’s right to act as Thursday, January 29, 2015 at the can register now on our website to title agent. New York Hilton Midtown during the NYSBA’s Annual Meeting. Leon assure your place at the meeting. We reconstituted our Attorney Sawyko, our Program Chair, prom- Escrow Agent Task Force to (1) re- We welcome Professor Shelby D. ises an interesting CLE session and view the disclosures that an attorney Green of Pace Law School as our new wonderful luncheon at the 21 Club. acting as escrow agent for a client co-chair of the Law School Intern- Please check our event calendar for should provide to the client and other ship Committee. She is working with other CLE programs sponsored by parties to the transaction; (2) pre- co-chair Ariel Weinstock to create our Section and its committees and pare model escrow agent disclosure more internship opportunities for law for social events scheduled by our forms for use in such transactions; students who wish to participate in District Representatives. the work of our Section’s many com- (3) review the escrow language in the mittees and publications. In addition, form contracts of sale to determine My best wishes to all for a very Professor Green is working with the whether any changes should be made happy and healthy New Year! administration and faculty of Pace to the forms, placed in a rider or set Law School to encourage participa- forth in a separate escrow agreement; David L. Berkey tion in our Student Internship Pro- (4) review the practices of upstate and Looking for Past Issues? N.Y. Real Property Law Journal hhttp://www.nysba.org/RealPropertyJournalttp://www.nysba.org/RealPropertyJournal 4 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 The 2008 Amendments to the New York Adverse Possession Law: Unresolved Ambiguity and Suggestions for Clarity By Vincent Di Lorenzo Introduction basis for the belief that the property under claim of right….”12 The decisions In July, 2008 the New York belongs to the adverse possessor or in the Court of Appeals, however, 6 Legislature made substantial revi- property owner, as the case may be.” made it clear that prior to the 2008 sions to the statutory provisions “Adverse possessor” is defi ned as amendments the New York courts 13 governing acquisition of title to real follows: “…when the person or entity recognized both hostile intention property by adverse possession.1 The occupies real property of another and adverse possession held under 14 proposed legislation was criticized person or entity with or without the mistaken belief of ownership as and opposed by the Real Property knowledge of the other’s superior a valid form of adversity. Thus, either Law Section of the New York State ownership rights, in a manner that satisfi ed the requirement in the N.Y. Bar Association due to, among other would give owner a cause of action Real Property Actions and Proceed- 7 reasons, the ambiguities it contained.2 for ejectment.” Yet if the adverse ings Law that possession must be 15 This article examines three signifi cant possessor enters with knowledge of under a “claim of title.” the owner’s superior rights, or with a ambiguities in the 2008 legislation: (a) The legislative history of the 2008 the claim of right requirement; (b) the reasonable basis for the belief that the property belongs to the owner, the amendments provides insight into revised actual possession standard; the changes the Legislature was at- and (c) the prospective or retroactive courts would characterize that entry as one made with hostile intention. tempting to implement and, in turn, nature of the legislative changes. It assistance in addressing the ambigui- explores how the courts