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Home > Underwriting > Title News > Fifteen Volume Six

SERIES: Fifteen VOLUME: Six DATED: June, 2000

~DEED CONSTRUCTION - NEED FOR AMBIGUITY TO ALLOW EXTRINSIC EVIDENCE~

A recently decided Appellate Division case provides an example of the circumstances under which a Court will look beyond the words of an instrument of conveyance to modify a real property description. Andersen v. Mazza (258 A.D. 2d 726 [3rd Department, decided 1999]) was an action commenced pursuant to RPAPL Article 15 in which plaintiffs sought, among other things, a declaration as to the ownership of approximately 8.1 acres of land in the Town of Hancock, Delaware County. The disputed area was located between plaintiffs' premises described as Lot 18 and an adjoining parcel owned by defendants and referred to as the west half of Lot 17. The County Court granted the defendants' motion for judgment as a matter of law and declared the defendants fee owners. The court concluded that no reasonable view of the evidence supported the plaintiffs' claim of ownership. The Plaintiffs' post-trial motion to set aside the decision and order directing judgment in defendants' favor was also denied and this appeal followed. The Appellate Court characterized the Plaintiffs' case as follows:

"[The] Plaintiffs maintain that County Court failed to recognize that the testimony of Norman Van Valkenburgh, their surveyor, established a prima facie case supporting their claim, Van Valkenburgh testified that he discovered a boundary consisting of two stone piles - approximately 150 years old - which placed the disputed land within plaintiffs' Lot 18. Plaintiffs' reliance on Van Valkenburgh's testimony is, however, misplaced for, as he acknowledged, this boundary is not referred to in any deed."

The Court then pointed out that Real Property Law Section 240(3) provides as follows:

"(3) Every instrument creating, transferring, assigning or surrendering an estate or interest in real property must be construed according to the intent of the parties, so far as such intent may be gathered from the whole instrument, and is consistent with the rules of law."

The Court then applied Section 240 to the facts in the Andersen case and found that:

"Where a deed description is ambiguous, extrinsic evidence may be considered in ascertaining the parties' intent... Though parol evidence is admissible to explain a deed's latent ambiguities, 'it may not be used to vary a boundary description or call set forth in a deed'...
Consequently, unless plaintiffs established ambiguities in the deed itself, recourse could not be had to extrinsic evidence, namely, Van Valkenburgh's testimony and the stone pile boundary. In this regard, the proof adduced at trial discloses that originally the record owner of Lots 17 and 18 was Renee DeRussey, that a survey commissioned by him reveals that Lot 17 in its entirety was comprised of 101 1/2 acres, that in 1872, DeRussey conveyed the east half of Lot 17 and all of Lot 18 to another party, that the deed reflected this acreage call, and that in transferring the east half of Lot 17, DeRussey conveyed 50 3/4 acres and reserved to himself the remaining 50 3/4 acres. That acreage representing the west half of Lot 17 - now defendants' lot - having been recited in the chain of title from 1866 to the present, resort to extrinsic evidence to establish a boundary different from that set out in the deed was proscribed.
Alternatively, plaintiffs contend that they obtained title to the land through adverse possession. Given our conclusion that the deeds at issue are to be accepted as written, and the description calls therein as controlling, plaintiffs may not succeed on their claim of adverse possession under a written instrument."

The Court then cited Real Property Actions and Proceedings Law Section 511 (Adverse Possession Under Written Instrument or Judgment) which provides that: "Where the occupant or those under whom he claims entered into the possession of the premises under a claim of title, exclusive of any other right, founding the claim upon a written instrument, as being a conveyance of the premises in question or upon the decree or judgment of a competent court, and there has been a continued occupation and possession of the premises included in the instrument, decree or judgment, or of some part thereof, for ten years, under the same claim, the premises so included are deemed to have been held adversely; except that when they consist of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot."

The Court went on in its analysis of the plaintiffs' adverse possession claim to say: "To prevail, plaintiffs were obliged to establish adverse possession via a claim of title not written..." The Court then cited Real Property Actions and Proceedings Law Section 521 (Adverse Possession Under Claim of Title Not Written) which provides: "Whether it has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely."

The Court then stated: "To do so by this method plaintiffs had to prove by clear and convincing evidence that their possession [was] hostile and under a claim of right, actual, open and notorious, exclusive, and continuous for the statutory period... and that the property was usually cultivated or improved or protected by a substantial inclosure..." The Court pointed out that under Real Property Actions and Proceedings Law Section 522 (Essentials of Adverse Possession Under Claim of Title Not Written) that: "Land is deemed to have been possessed and occupied in either of the following cases, and in no others: (1) Where it has been usually cultivated or improved; (2) Where it has been protected by a substantial inclosure."

The Court then held that: "Plaintiffs did neither. The fact that they managed the land for maple syrup production, occasionally cut timber from the property and posted some no trespassing signs does not, as County Court found, constitute adverse possession within the meaning of RPAPL 522..."

"And not having asserted it in their pleadings, plaintiffs waived their affirmative defense that the boundary was established by practical location... But, even if this defense had been properly raised, it would be unavailing, for plaintiffs have not shown that the former adjoining landowner acquiesced in the change of the boundary location as the doctrine demands... We have considered plaintiffs' remaining arguments and find them to be without merit."

The Appellate Court then upheld the County Court decision in favor of the Defendant.


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