Real Property Actions & Proceedings

ARTICLE 8

WASTE AND OTHER ACTIONS AND RIGHTS OF ACTION FOR INJURY TO
REAL PROPERTY
Section 801. Who liable to action for waste.
803. Alterations or replacements of structures by person having
estate for life or years.
811. Action for waste by heir, devisee or grantor of reversion.
812. Action for waste by ward against guardian.
813. Action for waste by grantee of real property sold under
execution.
815. Judgment in action for waste against tenant of particular
estate.
817. Action for waste against joint tenant or tenant in common.
821. View in action for waste.
831. Action by reversioner or remainderman.
833. Recovery of fee damages by the owner of a possessory estate
for life or for years.
841. Action for nuisance.
843. Fences and structures; when private nuisance.
851. Action against certain persons holding over as trespassers.
853. Action for forcible or unlawful entry or detainer; treble
damages.
861. Action for cutting, removing, injuring or destroying trees
or timber, and damaging lands thereon.
871. Action for the removal of encroaching structures.
881. Access to adjoining property to make improvements or
repairs.

S 801. Who liable to action for waste. An action for waste lies
against a tenant by the curtesy, in dower, for life, or for years, or
the assignee of such a tenant, who, during his estate or term, commits
waste upon the real property held by him, without a special and lawful
written license so to do; or against such a tenant who lets or grants
his estate and still retaining possession thereof commits waste without
a like license.

S 803. Alterations or replacements of structures by person having
estate for life or years. 1. When a person having an estate for life or
for years in land proposes to make an alteration in, or a replacement of
a structure or structures located thereon, then the owner of a future
interest in such land can neither recover damages for, nor enjoin the
alteration or replacement, if the person proposing to make such
alteration or replacement complies with the requirements hereinafter
stated as to the giving of security and establishes the following facts:
a. That the proposed alteration or replacement is one which a prudent
owner of an estate in fee simple absolute in the affected land would be
likely to make in view of the conditions existing on or in the
neighborhood of the affected land; and
b. That the proposed alteration or replacement, when completed, will
not reduce the market value of the interests in such land subsequent to
the estate for life or for years; and
c. That the proposed alteration or replacement is not in violation of
the terms of any agreement or other instrument regulating the conduct of
the owner of the estate for life or for years or restricting the land in
question; and
d. That the life expectancy of the owner of the estate for life or the
unexpired term of the estate for years is not less than five years; and
e. That the person proposing to make such alteration or replacement,
not less than thirty days prior to commencement thereof, served upon
each owner of a future interest, who is in being and ascertained, a
written notice of his intention to make such alteration or replacement,
specifying the nature thereof, which notice was served personally or by
registered mail sent to the last known address of each such owner of a
future interest. 2. When the owner of a future interest in the affected
land demands security that the proposed alteration or replacement, if
begun, will be completed and that he be protected against responsibility
for expenditures incident to the making of the proposed alteration or
replacement, the court in which the action to recover damages or to
enjoin the alteration or replacement is pending, or if no such action is
pending, the supreme court, on application thereto, on such notice to
the interested parties as the court may direct, shall fix the amount and
terms of the security reasonably necessary to satisfy such demand. The
furnishing of the security so fixed shall be a condition precedent to
the making of the proposed alteration or replacement.
3. This section applies only to estates for life or for years created
on or after September 1, 1937.

S 811. Action for waste by heir, devisee or grantor of reversion. An
heir or devisee may maintain an action for waste, committed in time of
his ancestor or testator, as well as in his own time. The grantor of a
reversion may maintain an action for waste committed before he aliened
the same.

S 812. Action for waste by ward against guardian. Such an action may
also be maintained against a guardian by his ward, either before or
after the termination of the guardianship, for waste committed upon the
real property of the ward during the guardianship.

S 813. Action for waste by grantee of real property sold under
execution. Where real property is sold by virtue of an execution, the
person to whom a conveyance is executed pursuant to the sale may
maintain an action for waste, committed thereon after the sale, against
the person who was then in possession of the property.

S 815. Judgment in action for waste against tenant of particular
estate. If the plaintiff recovers in an action for waste, other than an
action brought as prescribed in section 817, the final judgment must
award to him compensatory damages. Where the action is brought by the
person next entitled to the reversion and it appears, in like manner,
that the injury to the estate in reversion is equal to the value of the
tenant`s estate or unexpired term, the final judgment must also award to
the plaintiff the forfeiture of the defendant`s estate and the
possession of the place wasted.

S 817. Action for waste against joint tenant or tenant in common. 1.
An action for waste may also be maintained by a joint tenant or tenant
in common against his co-tenant who commits waste upon the real property
held in joint tenancy or in common. If the plaintiff recovers therein he
is entitled, at his election, either to a final judgment for
compensatory damages or to have partition of the property as prescribed
in subdivisions 2 and 3 of this section.
2. Where the plaintiff elects to have partition, if the pleadings,
verdict, report, or decision do not determine the rights and interests
of the several parties in the property so held in joint tenancy or in
common, the court must ascertain them, by a reference or otherwise. If
it appears that there are persons, not parties to the action, who must
have been made parties to an action for partition of the property, they
must be brought in by supplemental summons and, if necessary,
supplemental pleadings must be made. When the rights and interests of
all the parties are ascertained, an interlocutory judgment for the
partition or sale of the property must be rendered and the subsequent
proceedings therein must be the same as in an action for partition,
except as otherwise prescribed in subdivision 3.
3. The plaintiff may elect to take final judgment for the damages
awarded to him, or that, in making the partition, or in dividing the
proceeds of a sale, so much of the share of the defendant in the real
property, or the proceeds thereof, as will be sufficient to compensate
the plaintiff for his damages, and the costs of the action, other than
the expenses of making the partition or sale, be laid off or paid, as
the case may be, to the plaintiff. The residue of the property or
proceeds, not laid off or distributed to the plaintiff or the defendant,
must be laid off or paid to the persons entitled thereto, according to
their respective rights and interests.

S 821. View in action for waste. In an action for waste it is not
necessary, either upon the execution of a writ of inquiry or upon the
trial of an issue of fact, that the jury, the judge, or the referee
should view the property. Where the trial is by a referee, or by the
court without a jury, the referee or the judge may, in his discretion,
view the property and direct the attorneys for the parties to attend
accordingly. In any other case, the court may in its discretion, by
order direct a view by the jury.

S 831. Action by reversioner or remainderman. A person seized of an
estate in remainder or reversion may maintain an action founded upon an
injury done to the inheritance, notwithstanding any intervening estate
for life or for years.

S 833. Recovery of fee damages by the owner of a possessory estate for
life or for years. When the ownership of land is divided into a
possessory estate for life or for years and one or more future
interests, and a person having none of these interests causes damage to
such land, the damages recoverable by the owner of such possessory
interest from the wrongdoing third person may include damages caused to
interests in the affected land other than those owned by parties to the
action or proceeding when, but only when, all living persons who have
either a possessory or a future interest in the affected land are
parties thereto. The court in which any such recovery of damages occurs
shall make such direction for the distribution of the damages recovered
among the persons who are parties to the action or proceeding and for
the protection of the interests of persons who are not parties thereto,
as justice may require.
A tenant for life or for years in the land damaged is entitled to
receive from the recovery, in satisfaction of the damage to his estate
or interest, either a sum in gross or the earnings of a sum invested for
his benefit. The determination as to whether a sum in gross or the
earnings of a sum invested shall be awarded to the owner of such
particular estate shall be governed by the provisions with respect to
the proceeds of a sale in partition.

S 841. Action for nuisance. An action for a nuisance may be maintained
in any case where such an action might have been maintained under the
laws in force immediately before the taking effect of article seventh of
title one of chapter fourteenth of the code of civil procedure as added
thereto by chapter one hundred seventy-eight of the laws of eighteen
hundred eighty. A person by whom the nuisance has been erected and a
person to whom the real property has been transferred may be joined as
defendants in such an action. A final judgment in favor of the plaintiff
may award him damages or direct the removal of the nuisance or both.
This section does not affect an action wherein the complaint demands
judgment for a sum of money only.

S 843. Fences and structures, when private nuisance. Whenever the
owner or lessees of land shall erect or shall have erected thereon any
fence or structure in the nature of a fence which shall exceed ten feet
in height, to exclude the owner or occupant of a structure on adjoining
land from the enjoyment of light or air, the owner or occupant who shall
thereby be deprived of light or air shall be entitled to maintain an
action in the supreme court to have such fence or structure adjudged a
private nuisance. If it shall be so adjudged its continued maintenance
may be enjoined. This section shall not preclude the owner or lessee of
land from improving the same by the erection of any structure thereon in
good faith.

S 851. Action against certain persons holding over as trespassers. A
person in possession of real property as guardian or trustee for an
infant, or having an estate determinable upon one or more lives, who
holds over and continues in possession after the determination of his
trust or particular estate, without the express consent of the person
then immediately entitled, is a trespasser. An action may be maintained
against him or his executor or administrator, by the person so entitled,
or his executor or administrator, to recover the full value of the
profits received during the wrongful occupation.

S 853. Action for forcible or unlawful entry or detainer; treble
damages. If a person is disseized, ejected, or put out of real property
in a forcible or unlawful manner, or, after he has been put out, is held
and kept out by force or by putting him in fear of personal violence or
by unlawful means, he is entitled to recover treble damages in an action
therefor against the wrong-doer.

* S 861. Action for cutting or carrying off trees or timber; when
treble damages may be recovered. 1. If any person cuts down or carries
off any wood, underwood, tree or timber, or girdles or otherwise
despoils a tree on the land of another, without the owner`s leave, or on
the common or other land of a city, village or town, without having
right or privilege in those lands or license from the proper officer, an
action may be maintained against him by the owner, or the city, village
or town, as the case may be.
2. In an action brought as provided in this section, the plaintiff may
state in his complaint the amount of his damages and demand judgment for
treble the sum so stated. Thereupon, if the inquisition or, where issues
of fact are tried, the verdict, report or decision, awards him any
damages, he is entitled to judgment for treble the sum so awarded,
except that in either of the following cases judgment must be rendered
for single damages only:
a. Where the verdict, report, or decision finds affirmatively that the
injury, for which the action was brought, was casual and involuntary, or
that the defendant, when he committed the injury, had probable cause to
believe that the land was his own;
b. Where the defendant has pleaded, and the verdict, report, or
decision finds affirmatively, that the injury for which the action was
brought was committed by taking timber for the purpose of making or
repairing a public road, or a public bridge, or by taking any wood,
underwood, or tree, for a like purpose, by authority of a town officer
having charge of such construction or repairs.
* NB Effective until March 1, 2004
* S 861. Action for cutting, removing, injuring or destroying trees or
timber, and damaging lands thereon. 1. If any person, without the
consent of the owner thereof, cuts, removes, injures or destroys, or
causes to be cut, removed, injured or destroyed, any underwood, tree or
timber on the land of another or on the common or other land of a city,
village, town or county, or damages the land in the course thereof, an
action may be maintained against such person for treble the stumpage
value of the tree or timber or two hundred fifty dollars per tree, or
both and for any permanent and substantial damage caused to the land or
the improvements thereon as a result of such violation. Such reparations
shall be of such kind, nature and extent as will reasonably restore the
lands affected by the violation to their condition immediately before
the violation and may be made by physical restoration of such lands
and/or by the assessment of monetary payment to make such restoration.
2. In any action brought pursuant to subdivision one of this section,
if the defendant establishes by clear and convincing evidence, that when
the defendant committed the violation, he or she had cause to believe
the land was his or her own, or that he or she had an easement or right
of way across such land which permitted such action, or he or she had a
legal right to harvest such land, then he or she shall be awarded the
stumpage value or two hundred fifty dollars per tree, or both and
reasonable costs associated with maintaining an action pursuant to this
section. In such case, the defendant shall also be liable for any
permanent and substantial damage caused to the land or the improvements
thereon as a result of such violation. Such reparations shall be of such
kind, nature and extent as will reasonably restore the lands affected by
the violation to their condition immediately before the violation and
may be made by physical restoration of such lands and/or by the
assessment of monetary payment to make such restoration.
3. For the purposes of this section "stumpage value" shall mean the
current fair market value of a tree as it stands prior to the time of
sale, cutting, or removal. Stumpage value shall be determined by one or
more of the following methods: the sale price of the tree in an
arm`s-length sale, a review of solicited bids, the stumpage price report
prepared by the department of environmental conservation, comparison
with like sales on trees on state or private lands, or other appropriate
means to assure that a fair market value is established within an
acceptable range based on the appropriate geographic area.
* NB Effective March 1, 2004

S 871. Action for the removal of encroaching structures. 1. An action
may be maintained by the owner of any legal estate in land for an
injunction directing the removal of a structure encroaching on such
land. Nothing herein contained shall be construed as limiting the power
of the court in such an action to award damages in an appropriate case
in lieu of an injunction or to render such other judgment as the facts
may justify.
2. This section shall not be deemed to repeal or modify any existing
statute or local law relating to encroaching structures.

S 881. Access to adjoining property to make improvements or repairs.
When an owner or lessee seeks to make improvements or repairs to real
property so situated that such improvements or repairs cannot be made by
the owner or lessee without entering the premises of an adjoining owner
or his lessee, and permission so to enter has been refused, the owner or
lessee seeking to make such improvements or repairs may commence a
special proceeding for a license so to enter pursuant to article four of
the civil practice law and rules. The petition and affidavits, if any,
shall state the facts making such entry necessary and the date or dates
on which entry is sought. Such license shall be granted by the court in
an appropriate case upon such terms as justice requires. The licensee
shall be liable to the adjoining owner or his lessee for actual damages
occurring as a result of the entry.