NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
WASTE AND OTHER ACTIONS AND RIGHTS OF ACTION FOR INJURY TO
Section 801. Who liable to action for waste.
803. Alterations or replacements of
structures by person having estate for life
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 or carrying off trees
or timber; when treble damages may be
871. Action for the removal of encroaching
881. Access to adjoining property to make
improvements or repairs.
Sec. 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.
Sec. 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
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
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
3. This section applies only to estates for life or for years
created on or after September 1, 1937.
Sec. 811. ACTION FOR WASTE BY HEIR, DEVISEE OR GRANTOR OF
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.
Sec. 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
Sec. 813. ACTION FOR WASTE BY GRANTEE OF REAL PROPERTY SOLD UNDER
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.
Sec. 815. JUDGMENT IN ACTION FOR WASTE AGAINST TENANT OF
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.
Sec. 817. ACTION FOR WASTE AGAINST JOINT TENANT OR TENANT IN
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.
Sec. 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.
Sec. 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
Sec. 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
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.
Sec. 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.
Sec. 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.
Sec. 851. ACTION AGAINST CERTAIN PERSONS HOLDING OVER AS
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.
Sec. 853. ACTION FOR FORCIBLE OR UNLAWFUL ENTRY OR DETAINER;
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.
Sec. 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.
Sec. 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
Sec. 881. ACCESS TO ADJOINING PROPERTY TO MAKE IMPROVEMENTS OR
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.