Administrator Title Transfer Apparent Authority & Void ab Initio vs Voidable deeds
This week we wanted to draw your attention to a very interesting case out of the 2nd Department which, in the context of determining the validity of a mortgage foreclosure action, tackled complex issues related to the difference between a Deed “void ab initio” vs. a Deed that may have been “voidable” as well as the effect of “Apparent Authority” of an Administrator to transfer title. The relevant facts of, as well as a link to, the case are set forth below.
In 2008, the administrator of the Estate of a decedent owning real property conveyed the property to her sister and herself who, in 2009, obtained a mortgage loan. In 2017, she was removed as administrator of the Estate. The sister, claiming that the 2008 conveyance was void ab initio, then moved, in an action to foreclose the mortgage, for the mortgage to be canceled and discharged of record, which motion was denied by the Supreme Court, Queens County. Affirming the lower court’s ruling, the Appellate Division, Second Department, stated the following:“[T]he record shows that the [administrator] was cloaked with apparent authority, since she executed the deed in her capacity as administrator of the decedent’s estate, pursuant to letters of administration issued by the Surrogate’s Court. The fact that [her] letters of administration were later revoked…dies not render the deed void ab initio, but, at most, voidable [citation omitted].”
There was no claim that the foreclosing mortgagee was not a bona fide encumbrancer. Gerlitz v. Biddle, 2022 NY Slip Op 00851, decided February 9, 2022, is posted at
https://www.nycourts.gov/reporter/3dseries/2022/2022_00851.htm
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