--------------------------------------------------------
NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
(RPAPL)
ARTICLE 12
OTHER ACTIONS AND PROCEEDINGS BETWEEN CO-OWNERS OR OWNERS OF
SUCCESSIVE INTERESTS
Section 1201. Action by joint tenant or tenant in
common; may maintain action against co-
tenant.
1211. Action by joint tenant, tenant in
common or tenant by the entirety for
extinguishment of missing co-tenant's estate
upon deposit of its value.
1221. Action to sell preemptive rights
against the city of New York.
--------------------------------------------------------
Sec. 1201. ACTION BY JOINT TENANT OR TENANT IN COMMON; MAY
MAINTAIN ACTION AGAINST CO-TENANT.
A joint tenant or a tenant in common of real property, or his
executor or administrator, may maintain an action to recover his
just proportion against his co-tenant who has received more than
his own just proportion, or against his executor or
administrator.
Sec. 1211. ACTION BY JOINT TENANT, TENANT IN COMMON OR TENANT
BY THE ENTIRETY FOR EXTINGUISHMENT OF MISSING CO-
TENANT'S ESTATE UPON DEPOSIT OF ITS VALUE.
1. Where real property is held by two or more persons in their
own right as tenants in common, joint tenants or tenants by
the entirety and one of such tenants is missing under
circumstances which afford reasonable ground to believe that
he is dead, the other tenants or tenant may maintain an
action in the supreme court to obtain a determination of the
value of the estate of the missing co-tenant and a judgment
extinguishing the estate of the missing co-tenant upon
payment into court for his credit of the amount so
determined to be the value of his estate.
Persons known or unknown who are or may be the devisees or
distributees of a missing co-tenant may be joined as
defendants in such action.
2. (a) Service upon the missing co-tenant shall be made
in the manner provided for service in an action in
which the complaint demands judgment that the person to
be served be excluded from a vested or contingent
interest in specific real property in this state. In
addition, the court, at any stage of such action, may
direct that notice of the action be published at or
near the place where the co-tenant, when last heard
from, was known or believed to be.
(b) The court may, in its discretion, appoint a guardian ad
litem to represent the interests of the missing co-
tenant, or of persons who are or may be his devisees or
distributees.
3. A finding of reasonable ground to believe that the missing
co-tenant is dead may be made, for purposes of this section,
either (a) upon proof that the co-tenant has been absent
from his usual place of abode for seven successive years
last past, and that a diligent search has been made to
discover evidence that he is living and that no such
evidence has been found, or (b) upon proof of other
circumstances from which the probability that the missing co-
tenant is dead may reasonably be inferred, although the
period of his absence is less than seven years, provided
that such period is not less than one year.
4. Relief extinguishing the estate of the missing person shall
be deemed equitable and shall be granted in the discretion
of the court. However, no such relief shall be granted if
the court shall find as a fact that the missing person is
dead. In such event, the judgment dismissing the complaint
shall state such determination, but shall not be deemed an
adjudication of death of the missing person for any purpose
other than the dismissal of the complaint and shall not be
controlling in any other action or proceeding, whether or
not between the same parties, in which the fact of death of
the missing person is in issue.
5. The finding of reasonable ground to believe that the missing
person is dead shall be made, and the value of the property
and of the estate of the missing co-tenant shall be
determined, by the court without a jury or by a referee.
6. The value of the estates of tenants by the entirety shall be
deemed equal. The proportionate shares of joint tenants and
tenants in common shall be determined in like manner as in
an action for partition.
7. Costs of the action, and fees and disbursements of a
guardian ad litem appointed to represent the interests of
the missing co- tenant or his devisees or distributees shall
be assessed against the parties in such proportions as the
court shall direct and the part thereof assessed against the
missing person shall be charged against the value of the
estate of the missing person.
8. A judgment extinguishing the estate of the missing co-tenant
shall be conclusive even though the missing person was in
fact alive, or was in fact dead, at the date of the entry
thereof, and shall be conclusive against (a) any person
claiming under the missing person by title accruing or
conveyance recorded after the filing of the judgment-roll,
or of the notice of pendency of the action, and (b) any
person claiming under the missing co-tenant who is made a
party to the action. The judgment shall also have like
effect as a conveyance made by the missing co-tenant or by
the missing co-tenant and the other co-tenant or co-tenants,
conveying the premises to the co-tenant or co-tenants in
accordance with their interests resulting from the judgment.
The court may direct that an instrument of conveyance in
conformity with the judgment be executed and delivered by
the sheriff in the name of the co-tenant.
Sec. 1221. ACTION TO SELL PREEMPTIVE RIGHTS AGAINST THE CITY
OF NEW YORK.
1. In all cases where several persons are the owners, or claim
to be the owners of any real estate or chattels real lying
within the bounds of the city of New York, having different
estates, or estates in common therein, in possession,
remainder, or reversion, and which such persons shall, by
virtue of such ownership, or claim to such ownership, be
entitled, or claim to be entitled, by law to a preemptive
right to have, take, or demand the grant or lease of any
other land, or easement in land, from such city, the supreme
court shall have power, and such court is hereby vested with
full power and authority, on the application of either of
such owners, or of such city, to decree an absolute sale and
conveyance of such right of preemption, and to make such
disposition of the net moneys arising from such sale, after
the payment of the costs and expenses of the proceedings, as
shall be just and proper, according to the rights and
interests of such several owners.
2. Whenever any owner shall reside in the city of New York,
notice of such intended application shall be served
personally on such owner, or by leaving the same at his
dwelling-house with some person of suitable age and
discretion at least twenty days before such application is
made; and in all cases where such owner shall reside out of
such city and within any of the United States, and such
place of residence be known to the applicant, such notice
shall be served by mail, addressed to such owner at his
place of residence, at least three months before such
application is made. Proof of such service by affidavit
shall be made to the court before any order of sale shall be
made. Any of the parties to such suit may become the
purchaser on such sale.
3. In all cases where any owner shall be an infant, a guardian
shall be appointed for such infant, who shall give the like
security, and possess the like powers, and discharge the
like duties as in cases for the partition of lands.
4. Such sale shall be made and conducted on like notice by the
like officer, and in the same manner and form as sales of
real estate on the foreclosure of a mortgage by virtue of a
decree or order of such court, and a deed of conveyance for
such right of preemption shall in like manner be executed
and delivered to the purchaser, which deed shall vest in the
purchaser absolutely all the claim, right, title, and
interest of the owner of such right of preemption, and every
of them, of, in or to such right of preemption thus sold and
conveyed; provided always, in every case the applicant shall
give six weeks' previous notice of such intended application
if the owners entitled by law to such preemption right are
residents, and six months' previous notice of such intended
application if the owners entitled by law to such preemption
right are non-residents of the state, by publication for
three months successively, twice in each week, in two of the
daily papers published in such city prior to such
application to the court for an order of sale; and provided
also, that the court shall be satisfied that such order of
sale shall not interfere with or impair the obligation
contained in any lease or contract made by such city to or
with any person or persons whatsoever.
5. Whenever a right of dower, whether inchoate or consummate, a
tenancy by curtesy, or any other estate for life or for
years shall have existed in the preemptive rights so sold
and conveyed, the owner of such particular estate in the
rights sold is entitled to receive from the moneys arising
from such sale 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 of section 968 with
respect to the proceeds of a sale in partition.
