XIII. Real Property

A. LAND RELATED CAUSES OF ACTION

I. ABNORMAL DANGERS ON LAND

Elements to prove:

  1. where there is abnormally dangerous activity on the property, suggested by;
    1. existence of a high degree of risk of harm to person, land, or chattels of others;
    2. likelihood that the harm resulting will be great;
    3. inability to eliminate the risk by exercise of reasonable care;
    4. extent that the activity is not a matter of common usage;
    5. inappropriateness of the activity to the place where it is carried on; and 
    6. the extent its value to the community is outweighed by its attributes; and
  2. the abnormally dangerous activity was the proximate cause of the harm.

II. ADVERSE POSSESSION OF PROPERTY

Elements to prove:

  1. possession that is hostile;
  2. under a claim of right;
  3. actual;
  4. open and notorious;
  5. as well as exclusive and continuous; and
  6. for a prescribed 10-year period.

III. BROKER’S LIABILITY FOR INJURY AT OPEN HOUSE

Elements to prove:

  1. the broker can be shown to;
    1. own;
    2. control;
    3. occupy; or
    4. make special use of the premises; and
  2. the broker owed a duty of care to the plaintiff.

IV. BUYER IN BREACH LIABLE FOR REAL ESTATE BROKER’S COMMISSION

Elements to prove:

  1. for seller’s incidental damages; and
  2. including payment of real estate broker’s commission.

V. BUYER RECOVERING COSTS DUE TO TITLE DEFECT

Elements to prove:

  1. the purchaser normally must first tender performance himself or herself;
  2. demand good title; and
  3. tender of performance by a purchaser is excused only if the title defect is not curable.

VI. CO-TENANT’S SHARE OF PROFITS AND EXPENSES

Elements to prove:

  1. to recover his just proportion;
  2. against his co-tenant;
  3. who has received more than his own just proportion; or
  4. against his executor or administrator.

VII. COVENANT IN DEED VIOLATED

Elements to prove:

  1. the original grantor intended that the restrictive covenant;
  2. prohibiting the use of the defendants’ premises for any use other than a single family home;
  3. would run with the land;
  4. the covenant touches and concerns the land;
  5. there is privity of estate between the party claiming the benefit of the covenant;
  6. the right to enforce it; and
  7. the party who rests under the burden of the covenant.

VIII. CUSTOMER INJURED OFF LEASED PREMISES

No cause of action.

IX. EASEMENT AFTER PROPERTY DIVIDED

Elements to prove:

  1. the subdivision of the dominant estate does not destroy the easement;
  2. so long as no additional burden is imposed;
  3. upon the servient tenement by such use.

X. EASEMENT BY IMPLICATION

Elements to prove:

  1. the estates currently owned by different owners, previously must have been “in unitary ownership”;
  2. while in unitary ownership, the owner must have used
    1. one part of the land subordinate (‘subservient’) to the other; or
    2. or both parts in a reciprocal subordination;
  3. such use must be plainly and physically apparent on reasonable inspection
  4. affected the value of the estate benefited; and
  5. must be necessary to the reasonable use of such estate.

XI. EASEMENT BY NECESSITY

Elements to prove:

  1. there was a unity and subsequent separation of title; and
  2. at the time of an easement severance over defendant’s property was absolutely necessary.

XII. EASEMENT BY PRESCRIPTION

Elements to prove:

  1. the adverse;
  2. open and notorious;
  3. continued; and
  4. uninterrupted use of defendant’s property for the prescriptive period of 10 (formerly 15) years.

XIII. EJECTMENT (EJECTMENT FOR WRONGFUL POSSESSION OF CLAIM ON LAND)

Elements to prove:

  1. he or she was formerly in possession; 
  2. he or she was ousted or deprived of possession in whole or in part; and
  3. he or she has a right to re-enter and take possession.

XIV. INJURY OFF OWNER’S LAND

No such cause of action.

XV. INJURY ON OWNER’S LAND

Elements to prove:

  1. property owner was on notice;
  2. of a dangerous condition;
  3. that allegedly resulted in his or her injury;
  4. by producing evidence that an ongoing and recurring;
  5. dangerous condition existed in area of accident; and
  6. was routinely left unaddressed by property owner.

XVI. LANDOWNER EXCLUDING PATRON FOR DISCRIMINATORY REASONS

It is an unlawful discriminatory practice to make any decision based upon race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status of any person.

XVII. LANDOWNER’S SERVANT OR CONTRACTOR CAUSING INJURY

Elements to prove:

  1. injuries;
  2. result from the negligent acts;
  3. of a servant;
  4. done within the scope of his or her employment; and
  5. in the master’s service.

XVIII. PRIVATE NUISANCE

Elements to prove:

  1. arises from conduct;
  2. that invades another’s interest;
  3. in the private use and enjoyment of land; and
  4. the invasion is either
    1. intentional;
    2. negligent; or
    3. related to abnormally dangerous activities.

XIX. PUBLIC NUISANCE

Elements to prove:

  1. an interference with his or her right;
  2. to use and enjoy land;
  3. substantial in nature;
  4. intentional or negligent in origin;
  5. unreasonable in character; and
  6. caused by the defendant’s conduct.

XX. REAL ESTATE BROKER’S COMMISSION DUE AFTER TERMINATION

Elements to prove:

  1. after termination; and
  2. when the termination was in bad faith.

XXI. REAL PROPERTY DEFECT CONCEALED BY SELLER

Elements to prove:

  1. defendant affirmatively misrepresented a material fact;
  2. knowingly;
  3. the misrepresentation was justifiably relied on; and
  4. some injury or damages resulted.

XXII. SLANDER OF TITLE

Elements to prove:

  1. communication;
  2. falsely casting doubt;
  3. on validity of complainant’s title;
  4. reasonably calculated to cause harm; and
  5. resulting in special damages.

XXIII. WARRANTY OF HABITABILITY BY HOME SELLER

No implied warranty of habitability in the sale of a previously owned home.

XXIV. WASTE

Elements to prove:

  1. any destruction;
  2. misuse;
  3. alteration; or
  4. neglect;
  5. of premises;
  6. by one lawfully in possession;
  7. to the prejudice of;
  8. the interest of another.
B. LANDLORD-TENANT CAUSES OF ACTION

I. CONSTRUCTIVE EVICTION OF TENANT

Elements to prove:

  1. there has been no physical expulsion or exclusion of the tenant;
  2. the landlord’s wrongful acts;
  3. substantially and materially deprive the tenant;
  4. of the beneficial use and enjoyment of the premises; and
  5. the tenant must abandon possession.

II. EVICTION FOR ILLEGAL OCCUPANCY

Elements to prove:

  1. only use a violation as a predicate for eviction where;
  2. an appropriate agency has already issued a vacate order; or
  3. the violation was created by the tenant.

III. LANDLORD FAILING TO PROTECT TENANT FROM CRIME

Elements to prove:

  1. for the acts of a third party criminal;
  2. where the landlord’s negligent conduct;
  3. was a proximate cause of the injury.

IV. LANDLORD’S RETALIATORY EVICTION OF TENANT

Elements to prove:

  1. a landlord has served;
    1. a notice to quit; or
    2. commenced an action to recover real property;
  2. in retaliation for 
  3. a good faith complaint;
  4. made by the tenant;
  5. to a governmental authority;
    1. of the landlord’s alleged violation; or
    2. to secure or enforce any rights under the lease or rental agreement.

V. RENT IMPLIED BY TENANT’S OCCUPATION

Elements to prove:

  1. from a tenant;
  2. for the use and occupation of the premises; 
  3. without a written contract;
  4. where the intent and understanding of;
  5. the parties was that of;
  6. embarking upon the landlord-tenant relationship; and
  7. where the term of occupation was less than one year.

VI. SECURITY DEPOSIT NOT RETURNED TO TENANT

It may be retained by landlord only to the extent that damages were sustained.

VII. SUBTENANT LIABLE TO LANDLORD FOR RENT

The landlord is not required to accept performance of the terms of the main lease by a subtenant of his tenant.

VIII. TENANT EQUITABLE RELIEF FOR RENEWAL OPTIONS

Elements to prove:

  1. the tenant made good faith and substantial premise improvements;
  2. would suffer a forfeiture;
  3. the delay was the result of excusable default; and
  4. the landlord suffered no prejudice with the delay.

IX. TENANT UNLAWFULLY EVICTED

Elements to prove:

  1. an occupant of a dwelling unit who has
  2. lawfully occupied the dwelling unit for thirty consecutive days or longer
    1. entered into a lease with respect to such dwelling unit 
    2. made a request for a lease for such dwelling unit pursuant to relevant law
    3. by using or threatening force;
  3. engaging in a course of conduct interfering with
    1. comfort, repose, peace or quiet of such occupant in the use or occupancy; or interrupting or discontinuing essential services; or
  4. engaging or threatening to engage in any other conduct preventing or intending lawful occupancy; including removing the occupant’s
    1. possessions
    2. the door at the entrance to the dwelling unit;
    3. plugging or otherwise rendering the lock on such entrance door inoperable; or changing the lock on such entrance door without providing a new key.

X. WARRANTY OF HABITABILITY

Elements to prove:

  1. there is a written or oral lease or rental agreement;
  2. for residential premises;
  3. the landlord or lessor shall be deemed to covenant and warrant;
  4. the premises so leased or rented and all areas used in connection;
  5. in common with other tenants or residents;
  6. are fit for human habitation;
  7. for the uses reasonably intended by the parties; and
  8. the occupants of such premises shall not be subjected to any conditions that would be;
    1. dangerous;
    2. hazardous; or
    3. detrimental to their life, health or safety.

XI. YELLOWSTONE INJUNCTIONS

Elements to prove:

  1. it has a commercial lease;
  2. received a notice to cure threatening lease termination from the landlord;
  3. injunctive request is made before the notice to cure period ends; and
  4. the tenant is prepared to and possesses the ability to cure the alleged default by any means except by vacating the premises.

the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.