STATE OF NEW YORK
________________________________________________________________________
7355
2017-2018 Regular Sessions
IN ASSEMBLY
April 24, 2017
___________
Introduced by M. of A. McDONALD -- read once and referred to the Commit-
tee on Judiciary
AN ACT to amend the real property actions and proceedings law, in
relation to special proceedings to convey title to abandoned real
property to cities, towns or villages
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The article heading of article 19-A of the real property
2 actions and proceedings law, as amended by chapter 573 of the laws of
3 1982, is amended to read as follows:
4 SPECIAL PROCEEDING TO CONVEY TITLE TO
5 ABANDONED [DWELLING] REAL PROPERTY
6 TO CITY, TOWN OR VILLAGE
7 § 2. Section 1970 of the real property actions and proceedings law, as
8 amended by chapter 593 of the laws of 1983, is amended to read as
9 follows:
10 § 1970. Applicability. The department or agency of a city, town or
11 village, responsible for [the enforcement of the multiple dwelling law,
12 the multiple residence law, or any other law, code or ordinance govern-
13 ing the occupancy and maintenance of residential property] enforcing the
14 municipality's building code (hereinafter in this article referred to as
15 "the department") may institute a proceeding in accordance with the
16 provisions of this article for a judgment vesting in the city, town or
17 village title to [a dwelling] real property which has been abandoned by
18 the owner. This article shall not apply to a one-family or two-family
19 dwelling occupied by the owner thereof.
20 § 3. Subdivisions 1 and 2 of section 1971 of the real property actions
21 and proceedings law, subdivision 1 as amended by chapter 529 of the laws
22 of 2008 and subdivision 2 as amended by chapter 496 of the laws of 1983,
23 are amended to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09886-01-7
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1 1. The department may make a finding that [a dwelling] real property
2 is abandoned if:
3 (a) In the case of an occupied dwelling, the owner has failed for a
4 period of at least three consecutive months either to collect rent or to
5 institute summary proceedings for nonpayment of rent, and the department
6 finds that the dwelling has become a danger to life, health or safety as
7 a result of the owner's failure to assume his or her responsibility for
8 its condition. Such failure may be shown by such facts as an owner's
9 failure to provide services including, but not limited to, the failure
10 to make repairs, supply janitorial service, purchase fuel or other need-
11 ed supplies, or pay utility bills. The appointment of an administrator
12 pursuant to article seven-A of this chapter shall not prevent the
13 department from making a finding that a dwelling is abandoned; or
14 (b) In the case of [a] vacant [dwelling] real property, it is not
15 sealed or continuously guarded as required by law or it was sealed or is
16 continuously guarded by a person other than the owner, a mortgagee,
17 lienor or agent thereof, and either of the following facts exists:
18 (i) A vacate order of the department or other governmental agency
19 currently prohibits occupancy of the [dwelling] real property; or
20 (ii) The tax on such premises has been due and unpaid for a period of
21 at least one year; or
22 (iii) The property has had a zoning, housing, building or property
23 maintenance code violation which has been continuously outstanding and
24 not remediated for a period of at least one year from the date the
25 original order to correct or notice of violation was served upon the
26 property owner pursuant to subdivision four of section three hundred
27 eight of the civil practice law and rules if the owner is a natural
28 person, or pursuant to section three hundred ten, three hundred ten-a,
29 three hundred eleven or three hundred eleven-a of the civil practice law
30 and rules if the owner is a partnership, limited partnership, corpo-
31 ration or limited liability company, respectively, or
32 (c) In the case of a building for which an administrator has been
33 appointed pursuant to article seven-A of this chapter.
34 (i) no motion for the termination of the judgment entered pursuant to
35 article seven-A of this chapter has been granted by the appointing
36 court;
37 (ii) no mortgagee or lienor has commenced foreclosure proceedings; and
38 (iii) at least six months have passed since the granting of a judgment
39 appointing an administrator pursuant to article seven-A of this chapter.
40 2. When the department finds that [a dwelling] real property is aban-
41 doned within the meaning of this article, it shall make and file among
42 its records a certification containing such finding and the facts on
43 which it is based. Further, it shall immediately affix to the [dwelling]
44 real property in a prominent and conspicuous location, a notice that the
45 [building] property has been found to be [an] abandoned [building] and
46 that it is a crime to take, remove or otherwise damage any fixture or
47 part of the property or any building or structure located thereon.
48 § 4. Section 1971-a of the real property actions and proceedings law,
49 as added by chapter 496 of the laws of 1983, is amended to read as
50 follows:
51 § 1971-a. Destruction of abandoned [dwellings] real property.
52 "Destruction of [an] abandoned [dwelling] real property" occurs when a
53 person, having no right to do so or permission of the department or the
54 owner to take, remove or otherwise damage the fixtures or the structure
55 of the building, nor any reasonable ground to believe that he or she has
56 such right or permission, intentionally removes or damages any fixture
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1 or part of the structure of a building which has been certified as aban-
2 doned in accordance with the provisions of section nineteen hundred
3 seventy-one of this chapter.
4 § 5. Subdivision 2 of section 1972 of the real property actions and
5 proceedings law, as amended by chapter 573 of the laws of 1982, is
6 amended to read as follows:
7 2. The department shall serve upon the owner of the [dwelling] proper-
8 ty, a copy of the certification. Service shall be made personally or by
9 posting in a conspicuous place upon the [dwelling] property and mailing
10 a copy by registered or certified mail to the last known owner at such
11 owner's last known address. In the case of a dwelling subject to the
12 provisions of section three hundred twenty-five of the multiple dwelling
13 law, such mailing may be made to the last registered owner at his or her
14 last registered address. The copy of the certification shall be accompa-
15 nied by a notice stating that proceedings pursuant to this title may be
16 instituted unless the owner notifies the department that the property
17 has not been abandoned. Such notification shall be made by a showing
18 that the conditions upon which the findings in such certification are
19 based do not exist or have been corrected. Such showing shall be made
20 not later than thirty days after the date of such notice.
21 § 6. The real property actions and proceedings law is amended by
22 adding a new section 1972-a to read as follows:
23 § 1972-a. Alternative notice provisions. 1. In lieu of the notice
24 provisions of section nineteen hundred seventy-two of this article, a
25 city, town or village may elect to adopt the notice provisions of this
26 section.
27 2. (a) Upon the filing of a copy of the certification and notice of
28 intention to commence proceedings pursuant to this article in the office
29 of the county clerk, the department forthwith shall cause a notice of
30 intention to commence proceedings pursuant to this article to be
31 published in each of three non-consecutive weeks in a two month period
32 in at least two newspapers designated by the city, town or village.
33 (b) Each newspaper designated for this purpose shall have general
34 circulation in the city, town or village. An official newspaper of the
35 city, town or village shall be deemed to satisfy the requirements of
36 this provision. In New York and Bronx counties the newspapers to be
37 designated for the publication of such notice or any other public notice
38 required pursuant to this article shall be the daily law journal desig-
39 nated by the justices of the appellate division of the first judicial
40 department and another newspaper designated by such justices pursuant to
41 the provisions of subdivisions one and two of section ninety-one of the
42 judiciary law.
43 (c) Such notice shall be in substantially the following form:
44 "............... Court,............... County.
45 IN THE MATTER OF A PROCEEDING FOR A JUDGMENT VESTING TITLE TO REAL PROP-
46 ERTY WHICH HAS BEEN ABANDONED BY THE OWNER PURSUANT TO ARTICLE NINE-
47 TEEN-A OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW BY..........
48 (insert name of city, town or village).
49 NOTICE OF PROCEEDING TO VEST TITLE TO ABANDONED REAL PROPERTY
50 PLEASE TAKE NOTICE that on the........ day of...............,
51 the............ (insert name of city, town or village), hereinafter, the
52 "Petitioner", pursuant to law, filed with the clerk of .......... county
53 a petition for a judgment vesting title to real property abandoned by
54 the owner against various parcels of real property. Such petition
55 pertains to the following parcels: (insert the description and the name
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1 of the owner or owners of record of each parcel as of the date of the
2 filing of the certification).
3 Effect of filing: All persons having or claiming to have an interest
4 in the real property described in such petition are hereby notified that
5 the filing of such petition constitutes the commencement by the Peti-
6 tioner of a proceeding in the court specified in the caption above to
7 acquire title to such real property therein described by a proceeding
8 for a judgment against the owners who abandoned such real property.
9 Nature of proceeding: Such proceeding is brought against the real
10 property only. No personal judgment will be entered herein for such
11 abandonment.
12 Persons affected: This notice is directed to all persons owning or
13 having or claiming to have an interest in the real property described in
14 such petition. Such persons are hereby notified further that a duplicate
15 of such petition has been filed in the office of the Department of the
16 (insert name of city, town or village) and will remain open for public
17 inspection up to and including the date specified below unless the owner
18 notifies the Department that the property has not been abandoned.
19 The last day for notice by the owner that the property has not been
20 abandoned is hereby fixed as the .......... day of .......... (here
21 insert a date at least three months after the date of the first publica-
22 tion of this notice).
23 Service of answer: Every person having any right, title or interest in
24 or lien upon any parcel of real property described in such petition may
25 serve a duly verified answer upon the attorney for the Department
26 setting forth in detail the nature and amount of his or her interest and
27 any defense or objection to the proceeding. Such answer must be filed in
28 the office of the county clerk and served upon the attorney for the
29 Department on or before the date above mentioned as the last day for
30 notice to the Department that the property has not been abandoned.
31 Failure to answer: In the event of failure to answer by any person
32 having the right to do so, such person shall be forever barred and fore-
33 closed of all his or her right, title and interest in and to the parcel
34 described in such petition and a judgment divesting such person of any
35 right, title or interest in and to the parcel described in such petition
36 may be taken by default.
37 Department:
38 Attorney for Department:"
39 (d) The department shall on or before the date of the first publica-
40 tion of the notice set forth in paragraph (c) of this subdivision cause
41 a copy of such notice to be posted once in its office and shall cause a
42 copy of such notice to be posted in the county courthouse in the place
43 provided for the posting of public notices.
44 (e) Nothing contained in this section shall be construed to preclude
45 the department from providing for additional public notice of such
46 proceeding by other means, including broadcast on the local access chan-
47 nel of a cable television company having a franchise within the city,
48 town or village.
49 (f) If the substance of such notice has been incorporated into the
50 petition of foreclosure, the requirements of this section shall be
51 satisfied if the petition is published and posted in the manner
52 prescribed by this section.
53 3. (a) Parties entitled to notice. The department shall, on or before
54 the date of the first publication of the notice above set forth, cause a
55 notice to be mailed to (i) each owner and any other person whose right,
56 title, or interest was a matter of public record as of the date the
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1 certification was filed, which right, title or interest will be affected
2 by a judgment divesting the owner of title to the real property, and
3 whose name and address are reasonably ascertainable from the public
4 record, including the records in the offices of the surrogate of the
5 county, or from material submitted to the department pursuant to para-
6 graph (d) of this subdivision, and (ii) any other person who has filed a
7 declaration of interest which has not expired.
8 (b) Notification method. (i) Such notice shall be sent to each such
9 party both by certified mail and ordinary first class mail, subject to
10 the provisions of subparagraph (iv) of this paragraph. The notice shall
11 be deemed received unless both the certified mailing and the ordinary
12 first class mailing are returned by the United States postal service
13 within forty-five days after being mailed. In that event, the department
14 shall attempt to obtain an alternate mailing address from the United
15 States postal service. When notice is required to be sent to the commis-
16 sioner of taxation and finance, an alternate notice may be used by the
17 department, in accordance with instructions prescribed by the commis-
18 sioner of taxation and finance.
19 (ii) If an alternate mailing address is found, the department shall
20 cause the notice to be mailed to such owner at such address both by
21 certified mail and by ordinary first class mail. Notwithstanding any
22 provision of law to the contrary, such owner may notify the department
23 that the property has not been abandoned or serve a duly verified answer
24 to the petition until either the thirtieth day after such mailing, or
25 the date specified by the notice of the proceeding as the last day for
26 an answer, whichever is later.
27 (iii) If no alternate mailing address can be found, then in the case
28 of an owner, the department shall cause a copy of such notice to be
29 posted as provided herein on the property to which the petition relates;
30 in the case of a non-owner, the department shall cause a copy of such
31 notice to be posted in the department and in the office of the clerk of
32 the court in which the petition has been filed. Notwithstanding any
33 provision of law to the contrary, the party to whom such notice is
34 directed may notify the department that the property has not been aban-
35 doned or serve a duly verified answer to the petition until either the
36 thirtieth day after such posting or delivery, or the date specified by
37 the notice of the proceeding as the last day for an answer, whichever is
38 later.
39 (iv) Where an owner is listed as "unknown" on the tax roll and the
40 name of such owner cannot be found in the public record, the notice
41 shall be mailed to the property address by ordinary first class mail
42 addressed to "occupant" and a copy thereof shall be posted on the prop-
43 erty to which the petition relates.
44 (c) Posting of notice. When a notice is required to be posted on the
45 property to which the petition relates pursuant to this section, the
46 posting shall be deemed sufficient if it is either (i) affixed to a door
47 of a residential or commercial structure on the premises, or (ii)
48 attached to a vertical object, such as a tree, post or stake, and plain-
49 ly visible from the road. Provided, that if, when visiting the premises
50 for this purpose, the department should find thereon an occupant of
51 suitable age and discretion, he or she may deliver such notice to such
52 occupant in addition to or in lieu of posting it. The process of so
53 posting or delivering such notice shall warrant the imposition of an
54 extra charge of one hundred dollars against the parcel, in addition to
55 any other charges authorized by section eleven hundred twenty-four of
56 this chapter and without regard to any limitations set forth therein.
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1 (d) Changes of address. It shall be the responsibility of any party
2 entitled to notice pursuant to this section to notify the department
3 when his, her or its address changes. Such notification need not be in
4 any particular form as long as it is in writing, affirmatively states
5 that such party's address has changed or uses language to that effect,
6 and sets forth the new address. It shall not suffice to submit to the
7 department an item that merely displays the new address, such as a check
8 upon which the new address has been imprinted, or a letter or envelope
9 which uses the new address as the return address, unless such submission
10 includes language clearly indicating that such address is that party's
11 new address. In the event that a proceeding is challenged on grounds of
12 lack of notice, and the party raising this issue failed to provide a
13 current address to the department pursuant to this paragraph, the court
14 having jurisdiction may take such failure into account when evaluating
15 whether reasonable notice was given.
16 (e) Public record. For purposes of this section, the public record
17 shall be deemed to consist of the books maintained by the recording
18 officer of the county in which the property is located pursuant to
19 section three hundred fifteen of the real property law, the books kept
20 by the clerk of the surrogate's court of the county in which the proper-
21 ty is located pursuant to section twenty-five hundred two of the surro-
22 gate's court procedure act, the tax rolls in the possession of the city,
23 town or village dated from the certification of abandonment forward.
24 4. The notice to be so mailed shall consist of (a) a copy of the peti-
25 tion and, if not substantially the same as the petition, the public
26 notice of vesting of title, provided that such copies need not include
27 the descriptions or the names of the owners of any parcels in which the
28 addressee does not have an interest, and (b) a statement substantially
29 as follows:
30 "To the party to whom the enclosed notice is addressed:
31 You are presumed to own or have a legal interest in one or more of the
32 parcels of real property described on the enclosed petition.
33 A proceeding to vest title to such property based upon the abandonment
34 by the owner has been commenced. This proceeding will result in the loss
35 of ownership of such property and all rights in that property.
36 To avoid loss of ownership or of any other rights in the property, you
37 must interpose a duly verified answer in the proceeding. You may wish to
38 contact an attorney to protect your rights.
39 After.......... (insert the last date to notify the Department), a
40 court will transfer the title of the property to the.......... (Name of
41 the city, town or village) by means of a court judgment.
42 Should you have any questions regarding this notice, please
43 call........ (insert the name of the officer or employee of the Depart-
44 ment) at.......... (insert telephone number).
45 Dated,............... (Insert date)."
46 5. (a) An affidavit of mailing of such notice shall be executed.
47 (b) The failure of an intended recipient to receive any such notice
48 shall not invalidate the proceeding or prevent the enforcement of the
49 same as provided by law.
50 (c) The service of the notice required by this section shall be deemed
51 to be equivalent to the service of a notice of petition pursuant to
52 section four hundred three of the civil practice law and rules.
53 6. (a) Nothing contained herein shall be construed to preclude the
54 department from issuing, at its discretion, a duplicate of any such
55 notice, clearly labeled as such, through means other than ordinary first
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1 class mail, including but not limited to personal service, registered or
2 certified mail, facsimile transmission, or electronic mail.
3 (b) Nothing contained herein shall be construed to preclude the
4 department from issuing, at its discretion, one or more informal notices
5 to an owner or other party prior to issuing the notice required by this
6 section.
7 (c) The failure of the department to mail any such discretionary
8 notice, or the failure of an intended recipient to receive such a
9 notice, shall not invalidate the proceeding or prevent the enforcement
10 of the same as provided by law.
11 7. Any notice mailed by ordinary first class mail pursuant to this
12 section may also be mailed in duplicate by certified mail at the option
13 of the department.
14 § 7. Subdivision 1 of section 1973 of the real property actions and
15 proceedings law, as amended by chapter 593 of the laws of 1983, is
16 amended to read as follows:
17 1. After all provisions of section nineteen hundred seventy-two of
18 this article have been complied with, the department may commence a
19 proceeding in a court of competent jurisdiction in the county in which
20 the [dwelling] property is located, to vest title to the property in the
21 city, town or village.
22 § 8. Subdivisions 1 and 3 of section 1974 of the real property actions
23 and proceedings law, subdivision 1 as amended by chapter 573 of the laws
24 of 1982 and subdivision 3 as amended by chapter 593 of the laws of 1983,
25 are amended to read as follows:
26 1. If any party to the proceeding contests the issue of abandonment,
27 the burden of proving that the [dwelling] property is abandoned shall be
28 upon the department, and the court shall make a finding based on the
29 facts before it.
30 3. Upon a finding by the court that the [dwelling] property is aban-
31 doned, the court shall enter a final judgment in favor of the petition-
32 er. The fact that an administrator has been appointed pursuant to arti-
33 cle seven-A of this chapter shall not prevent the court from entering a
34 final judgment in favor of the petitioner upon a finding by the court
35 that the [dwelling] property is abandoned. The final judgment shall
36 direct such officer of the city, town or village in which the [dwelling]
37 property is located as may be designated in the judgment to execute and
38 record a deed conveying title of the premises to the city, town or
39 village thirty days after entry of judgment. Upon the entry of such
40 judgment the city, town or village shall be seized of an estate in fee
41 simple absolute in such land and all persons, including the state of New
42 York, infants, incompetents, absentees and non-residents who may have
43 had any right, title, interest, claim, lien or equity of redemption in
44 or upon such lands shall be barred and forever foreclosed of all such
45 right, title, interest, claim, lien or equity of redemption.
46 § 9. This act shall take effect immediately.