Under the common law, tenants-in-common are afforded a measure of extra protection from adverse possession claims asserted by their cotenants. In a tenancy- in-common, each cotenant has an equal right to possess and enjoy all or any portion of the property as if he were the sole owner. Consequently, nonpossessory cotenants do not relinquish any of their rights as tenants-in-common when another cotenant assumes exclusive possession of the property. In New York, nonpossessory cotenants are protected by a common-law rule that presumes a cotenant's possession is possession by and for the benefit of all other cotenants. This common-law rule is codified in RPAPL 541. The statute, however, also limits the presumption by providing that it "shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, personally or by his [or her] servant or by his tenant, or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his cotenant."
169 MLS Realty Corp. v. One 69 Skill Corp., NY Slip Op 04898 (2d Dep't September 1, 2021)
Tomorrow's issue: CPLR 3215.
