January 2012 Archives

Second Department Joins Third and Fourth Departments in Deciding That Revised Adverse Possession Laws Are Not Applied Retroactively

January 16, 2012

In Hogan v. Kelly, the Second Department decided that the 2008 changes to the Real Property and Procedure Law affecting adverse possession claims are not to be applied retroactively so that compliance with the old laws prior to 2008 will give rise to a claim for adverse possession. In this case, because the law before 2008 did not require a possessor to believe that he owned the property possessed, that the defendants knew the property not be theirs did not defeat their claim.

Compelling the Removal of Air Conditioner Unit in Co-op Deemed Violation of Fair Housing Act

January 2, 2012

Queens co-op owner installed an air conditioner in his unit, for use by his parents who resided there. The Co-op Board demanded that the air conditioner be removed as it extended through the wall of the building, in violation of the unit's lease. In response to the Board's threat to terminate the lease, the owner commenced an action seeking a declaration that there was no violation of the lease. The owner alleged that because his mother had an extreme allergy and needed the air conditioner for health purposes the air conditioner was necessary and proper, and by threatening to terminate the lease the Board discriminated against her due to her illness, in violation of the Federal Fair Housing Amendments Act. The court Hearing Officer agreed, finding that because the air conditioner was medically necessary for the residents' ordinary occupancy of the unit, preventing such use violated the Act, and State law. The unit owner also sought the recovery of attorneys' fees, which was denied by the Hearing Office. Upon the parties' appeal to the judge, the Hearing Officer's decision was upheld, except as to the denial of the attorneys' fees, which the judge determined could be awarded to the unit owner under the Act.