## Facts

- The City of New York held title to a one-family house at 527 Linwood Street in Brooklyn after a taking by condemnation (title as of June 25, 1987).
- Thelma Utsey and family entered and began living in the house in 1988–1989 without formal permission from the City.
- The occupants cleaned and repaired the premises at significant personal expense and established utilities in their names; they also provided the City with an engineer’s report and receipts for repairs.
- The City knew of the occupancy for years; prior efforts to recover possession (including an earlier proceeding that was discontinued and a denied writ application) did not remove the occupants.
- In August 1997, the City commenced a summary “squatter” proceeding under RPAPL 713(3) after serving only a 10-day notice to quit.
- The occupants argued they had become tenants entitled to a 30-day written termination notice under Real Property Law § 228 due to the City’s prolonged tolerance of their non-adverse occupancy.
- The Civil Court granted summary judgment to the City and entered a final judgment of possession.

## Issues

1. Whether occupants who initially entered City-owned property without permission became tenants at will (rather than mere squatters or tenants at sufferance) due to the City’s long-term acquiescence and the occupants’ acknowledgment of the City’s title, triggering Real Property Law § 228’s 30-day notice requirement.
2. Whether the City’s service of only a 10-day notice to quit supported summary judgment for the City in a squatter proceeding, or instead required dismissal for failure to serve the proper termination notice.

## Decision

- The Appellate Term reversed the final judgment of possession.
- The court denied the City’s motion for summary judgment.
- The court granted summary judgment to the occupants and dismissed the petition.
- The court held the occupants were tenants at will entitled to a 30-day written notice under Real Property Law § 228; the City’s 10-day notice was insufficient.

## Legal Principles

- A tenancy at will may arise by implication where an owner, with knowledge, tolerates long-term occupancy that is subordinate to and acknowledges the owner’s title, even if the initial entry was unauthorized.
- Real Property Law § 228 requires at least 30 days’ written notice to terminate a tenancy at will (and a tenancy at sufferance).
- RPAPL 713(3)’s squatter proceeding and short notice to quit cannot be used where the owner’s conduct has effectively treated the occupants as tenants at will; failure to serve the required § 228 notice mandates dismissal of the summary proceeding.

## Conclusion

Because the City’s prolonged acquiescence and the occupants’ acknowledgment of the City’s ownership established a tenancy at will, the City was required to serve a 30-day termination notice under Real Property Law § 228; serving only a 10-day notice required dismissal of the petition and warranted summary judgment for the occupants.


City of New York v. Utsey, 185 Misc. 2d 715 (N.Y. App. Term 2d Dep’t 2000)