Real Property Actions & Proceedings

ARTICLE 6

ACTION TO RECOVER REAL PROPERTY
Section 601. Damages for withholding real property obtainable in action
to recover possession; set-off by defendant.
611. Where action cannot be maintained: dower; property not
exceeding six inches in width; by mortgagee.
612. Where action cannot be maintained; action based on reverter
or breach of condition subsequent.
621. Separate action by joint tenant or tenant in common.
623. Action by grantee of lands held adversely.
625. Action by reversioner or remainderman after tenant`s
default.
631. Defendants.
633. Action against co-tenant; ouster to be proved.
635. Action against occupants of apartments.
637. Action against one defendant subject to rights of others.
641. Complaint.
651. Expiration of plaintiff`s title before trial.
653. Judgment to state plaintiff`s estate.
661. Liability of purchaser pending an action.

S 601. Damages for withholding real property obtainable in action to
recover possession; set-off by defendant. In an action to recover the
possession of real property, the plaintiff may recover damages for
withholding the property, including the rents and profits or the value
of the use and occupation of the property for a term not exceeding six
years; but the damages shall not include the value of the use of any
improvements made by the defendant or those under whom he claims. Where
permanent improvements have been made in good faith by the defendant or
those under whom he claims, while holding, under color of title,
adversely to the plaintiff, the value thereof must be allowed to the
defendant in reduction of the damages of the plaintiff, but not beyond
the amount of those damages.

S 611. Where action cannot be maintained: dower; property not
exceeding six inches in width; by mortgagee. The action cannot be
maintained:
1. Where an action for dower may be maintained.
2. Where the real property consists of a strip of land not exceeding
six inches in width upon which there stands the exterior wall of a
building erected partly upon said strip and partly upon the adjoining
lot, and a building has been erected upon land of the plaintiff abutting
on the said wall, unless said action be commenced within one year after
the completion of the erection of such wall. But an action may be
maintained if commenced within the further period of one year, for the
recovery of damages by reason of the erection of such wall, and upon the
satisfaction of the judgment for such damages the title of the plaintiff
to such strip of land shall thereby be transferred to and vest in the
defendant. If an action for the recovery of real property or damages is
not brought within the period hereby limited therefor, the person in
possession of such lands shall be deemed to have an easement in said
strip of land so long as the said wall partly erected thereon shall
stand, and no longer, and in case of the destruction of such wall the
owner of such strip shall have the same right to take or recover the
possession thereof as if such wall had never existed.
3. By a mortgagee, or his assignee, or other representative.

S 612. Where action cannot be maintained; action based on reverter or
breach of condition subsequent. 1. Except as otherwise provided in this
section, an action to recover the possession of real property cannot be
maintained where it is founded upon a claim of reverter of an estate in
fee conveyed upon special limitation or founded upon a claim of breach
of a condition subsequent, other than a condition of a lease for a term
of years, unless (a) within ten years after the occurrence of the
reverter or the first occurrence of the breach, the plaintiff, or any
predecessor in interest then entitled to possession or to exercise the
power of termination, shall have served upon the person or persons
against whom the action might then have been commenced a written demand
that possession be delivered, stating the ground thereof, and the action
is commenced within one year thereafter or (b), if no such demand is
served, the action is commenced within such ten years.
2. Where the reverter or breach occurred before September 1, 1963, an
action may be maintained if demand is made as provided in this section
before the expiration of ten years computed from the occurrence of the
reverter or the first occurrence of the breach, or on or before
September 1, 1965, whichever is later, and the action is commenced
within one year thereafter or if, without previous demand as provided in
this section, the action is commenced before the expiration of ten years
computed from the occurrence of the reverter or the first occurrence of
the breach, or on or before September 1, 1965, whichever is later.
3. The demand shall be served either personally or by mailing the same
by certified mail addressed to the person or persons against whom the
action might then have been commenced, at his or their last known
address or addresses. 4. The demand may be made on behalf of an infant
by his parent or guardian or by the person with whom he resides, may be
made on behalf of an incompetent by the committee of his person or
property, and may be made on behalf of a conservatee by the conservator
of his property. If the person entitled to maintain the action shall
have died, the demand may be made either by the persons succeeding to
the right of the decedent, or one of them, or on their behalf by the
personal representative of the decedent.
5. The demand shall become ineffective unless action to recover
possession in accordance therewith is commenced within one year from the
date of service thereof. If no action is commenced, or no such demand is
served within the time specified in subdivisions 1 or 2, or if the
demand served becomes ineffective, it shall be conclusively presumed
that the possibility of reverter by reason of which the estate is
claimed to have reverted, or the power of termination for breach of the
condition which is claimed to have been broken, was extinguished at or
before the date when the reverter would have occurred or a right of
entry would have accrued by reason of such possibility of reverter or
breach of such condition.
6. The operation of this section is not affected by any disability, or
by the fact that the person against whom the action might have been
brought within the period herein provided was during that time a
non-resident or absent from the state, and is not affected by any lack
of knowledge on the part of any person that the reverter or breach has
occurred, unless it is established that the facts upon which the
reverter occurred, or the facts constituting the breach, were concealed
from the plaintiff or his predecessor in interest by actual fraud. If
such fraud be established, the time provided in subdivision 1 or 2 shall
commence to run when the facts are discovered by a person entitled to
serve the demand as provided in this section.
7. This section does not limit any other statute or rule of law or
equity by which a possibility of reverter or right of entry is or may be
extinguished or rendered unenforceable, or by which an action to recover
possession of the property may be extinguished or barred.

S 621. Separate action by joint tenant or tenant in common. Where two
or more persons are entitled to the possession of real property as joint
tenants or tenants in common, one or more of them may maintain the
action to recover his or their undivided shares in the property in any
case where such an action might be maintained by all.

S 623. Action by grantee of lands held adversely. The action shall be
maintained by a grantee, his executors, administrators or assigns in his
own name, although at the time of the conveyance, such real property was
in the actual possession of a person claiming under a title adverse to
that of the grantor.

S 625. Action by reversioner or remainderman after tenant`s default.
Where a tenant for life or for a term of years suffers judgment to be
taken against him, by consent or by default, in an action to recover
real property, the heir or person owning the reversion or remainder, may
maintain an action to recover the property, after the determination of
the particular estate.

S 631. Defendants. Where the complaint demands judgment for the
immediate possession of the property, if the property is actually
occupied, the occupant shall be made defendant in the action. If it is
not so occupied, the action shall be brought against some person
exercising acts of ownership thereupon, or claiming title thereto or an
interest therein, at the time of the commencement of the action. Any
person claiming title to, or the right to the possession of, the real
property sought to be recovered, as landlord, remainderman, reversioner,
or otherwise adversely to the plaintiff, may be joined as defendant.

S 633. Action against co-tenant; ouster to be proved. Where the action
is brought by a tenant in common or a joint tenant against his
co-tenant, the plaintiff, besides proving his right, shall also prove
that the defendant actually ousted him or did some other act amounting
to a total denial of his right.

S 635. Action against occupants of apartments. In a case where two or
more defendants occupy different apartments in a building the plaintiff
is entitled to judgment jointly against all the defendants who are
liable to him.

S 637. Action against one defendant subject to rights of others.
Where one or more answering defendants hold under another defendant, and
the plaintiff elects to proceed against the latter, subject to the
rights and interests of the former, if the plaintiff recovers final
judgment against the defendant under whom they hold, the judgment
operates as a transfer to the plaintiff of that defendant`s right, title
and interest.

S 641. Complaint. The complaint shall state the plaintiff`s interest
in the property and describe it with reasonable certainty in such manner
that, from the description, possession of the property claimed may be
delivered.

S 651. Expiration of plaintiff`s title before trial. If the right or
title of the plaintiff expires after the commencement of the action but
before the trial, and he would have been entitled to recover but for the
expiration, the verdict, report or decision shall be rendered according
to the fact; and the plaintiff is entitled nevertheless to judgment for
his damages for the withholding of the property to the time when his
right or title so expired.

S 653. Judgment to state plaintiff`s estate. A verdict, report or
decision in favor of the plaintiff and the judgment rendered thereon,
shall specify in writing the estate of the plaintiff in the property
recovered, whether it is in fee, or for life, or for a term of years
stating for whose life it is, or specifying the duration of the term, if
the estate be less than a fee.

S 661. Liability of purchaser pending an action. If the defendant
aliens the real property in question after the filing of a notice of
pendency of the action, and an execution against him for the plaintiff`s
damages is returned wholly or partly unsatisfied, an action may be
maintained by the plaintiff against any person who has been in
possession of the property, under the defendant`s conveyance, to recover
the unsatisfied portion of the damages, for a time not exceeding that
during which he possessed the property.