The Volokh Conspiracy

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The Place Where Property Law Happens in New York City

By an amazing coincidence, a current property dispute is occurring at the site of a storied property law case.


Last month, the New York Times reported on a pitched adverse possession battle between two residential buildings on the Upper East Side of Manhattan.

On a coveted stretch of Fifth Avenue, steps away from Central Park, the shareholders of an Upper East Side cooperative are fighting for an unusual prize: the ownership of a grimy concrete ditch behind their luxury apartment building.

The roughly 350-square-foot plot is at the center of a lawsuit filed on Friday in New York State Supreme Court that pits the millionaire residents of 980 Fifth Avenue against the real estate mogul and former governor of New York, Eliot Spitzer, who owns an adjacent rental tower. . . .

In its lawsuit, the co-op board is arguing that it should be the rightful owner of the pit through a doctrine called adverse possession, in which a party can make a legal claim to a property after 10 continuous years of undisputed use. While the property is legally owned by Mr. Spitzer's neighboring rental building, 985 Fifth Avenue, the co-op claims that it has routinely and openly used the roughly six-foot-deep niche to store construction supplies and has never been asked to stop.

For those of us teaching Property to 1Ls, the timing of the story could not have been better, as adverse possession often makes an early appearance in the course. It also served as fresh evidence of how musty old legal doctrines can be quite relevant in contemporary property disputes (especially where, as here, the parties appear to be motivated by more than just property).

I did not notice it at the time, but the location of the dispute—79th and Fifth Avenue along Central Park—was also the location of a famous property case that is a staple of the 1L survey course: Brokaw v. Fairchild.

Before this corner was occupied by residential towers, it was the site of the Brokaw mansion. This mansion, built in the late 19th century, was bequeathed to George Brokaw in life estate. George did not want to live there, however, and had a hard time finding someone willing to pay what he thought was a reasonable rent, so he wanted to tear down the mansion and build an apartment building. The only problem is that those who held future interests in the property (the "remaindermen," i.e. those who held contingent remainders) objected to these plans, leading to a lawsuit.

In the end, the courts rejected George's plans, holding that it would constitute "waste" for him to fundamentally change the nature of the property by tearing down the mansion and constructing an apartment building.  Wrote the court, "such demolition would result in such an injury to the inheritance as under the authorities would constitute waste," even if (as George claimed) it would increase the value of the property.

The Brokaw mansion survived, and George lived there until his death in 1935. The mansion was eventually owned by Time magazine publisher Henry Luce, who was married to Clare Booth Luce (who had previously been married to George). Eventually, in 1964, the mansion was torn down and replaced with a residential tower—a residential tower that, as luck would have it, is now at the center of the aforementioned adverse possession fight, presenting yet another opportunity for the corner of 79th and Fifth to find a place in Property Law casebooks.