possession-is-9/10ths-of-the-law, squatters-rights, use-it-or-lose-it, adverse possession, real property, claim ownership, hollis laidlaw & simon land use attorneys, mount kisco, westchester ny, long island

Property Owners Beware:
Adverse Possession in New York is Still Alive and Well

Possession is 9/10ths of the law. Squatter’s rights. Use it or lose it. These are popular terms or phrases that most people have heard or used in casual conversation. While they may not be precise restatements of modern law, they are grounded in legal concepts that were developed thousands of years ago. When it comes to real property, adverse possession represents the modern-day evolution of the legal concept that, under certain circumstances, a party in possession may have a claim of right that is superior to the actual title owner.

The idea of adverse possession can be traced back to ancient history. As King Hammurabi expanded his reign of the Babylonian Dynasty from 1792 to 1750 B.C., he implemented one of the earliest known comprehensive codes of uniform laws to govern conduct in his kingdom. Among over 200 laws, Hammurabi’s Code provided that, “[i]f a chieftain or a man leave his house, garden, and field and hires it out, and someone else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.”

More than 3,000 years of development and refinement of legal principles has not resulted in a legal theory of adverse possession that is any less complex and stringent. Thus, it is important for landowners to seek professional help when possessory issues arise over the use and occupation of land.

Adverse Possession in New York

New York law presently defines an adverse possessor as one who occupies another person’s or entity’s real property, with or without knowledge of the other’s ownership rights, in a manner that would give the owner a cause of action to eject the adverse possessor.

To establish a claim for adverse possession, and take title to the disputed property, the adverse possessor must establish that their possession of the land has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual for the statutorily required period (the “prescriptive period”). In New York, the prescriptive period is 10 years.

These five requirements were designed to protect the owner, giving the owner a chance to discover the potential adverse possession claim, and to eject the adverse possessor before a claim has a chance to mature. However, once the prescriptive period has passed, the owner’s remedies are cut off and title passes to the adverse possessor.

In 2008, the state legislature expanded protections for property owners by, among other things, amending the Real Property Actions and Proceedings Law to provide that de minimis non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse. Nonetheless, this provision may not be applicable where the adverse possessor can demonstrate that title vested by adverse possession prior to the effective date of the amendment.

Hostile and under Claim of Right

The courts require that claimants seeking adverse possession establish that their possession was adverse, or hostile, to ensure that the title owner had knowledge of the adverse claim. However, this does not mean that the claimant must demonstrate either enmity or hostile acts. The claimant may demonstrate hostile possession merely by asserting a right to property that is adverse to the owner and in opposition to the owner’s rights. Hostility may also be established through proof of the other four requirements: actual possession, that is open and notorious, exclusive, and continuous for the prescriptive period.

However, proof that the use was permissive will negate any claim that the use was hostile and under claim of right. Permission may be inferred from neighborly cooperation and accommodation. But, even if the initial use was permissive, the claimant can still prove it became hostile if permission was later repudiated or renounced and the claimant assumed a hostile attitude.

Claimants must also establish a claim of right. Possession of land without a claim of right will not convey ownership. Before 2008, claim of right was not statutorily defined. A party attempting to establish a claim of right merely had to demonstrate conduct that was hostile and in opposition to the owner’s rights. Their knowledge of the true owner was not an impediment to gaining title by adverse possession unless they made an overt acknowledgement of the owner, such as by an offer to purchase.

Now, as a result of the 2008 amendments, claimants must also establish a reasonable basis for their belief that the disputed property belongs to them. However, this belief is not required where the owner of the property cannot be ascertained in the county records where the property is located.

Actual Possession

The claimant must also establish actual possession of the property, such that it would give the owner a cause of action for ejectment during the prescriptive period and before the claim has matured. Additionally, if the claim accrued before the 2008 amendments became effective, and the claim is not based upon any written instrument, the claimant must establish that the subject property was either “usually cultivated or improved” or “protected by a substantial inclosure.”

Open and Notorious

Possession is open and notorious where the adverse possessor’s use of the property is sufficiently visible that a casual inspection by the owner would discover the adverse use. Accordingly, a subterranean encroachment is generally not considered open and notorious. Nor is an adverse use that is located on an area of the property that is otherwise relatively inaccessible to the owner.

Exclusive

To establish that possession was exclusive, the adverse possessor must demonstrate that they were the only ones to care for and improve the disputed property, as if it were their own, exercising exclusive possession and control. Adverse possession is not negated if others use the disputed property so long as the claimant’s use is still separate and exclusive from the general public’s use. Conversely, a use is not exclusive where the claimant’s use is related to the owner and the general public’s use. Accordingly, where the claimant allowed friends and neighbors to use a disputed dock, his use of it was still exclusive because he did not grant use to the general public and he actually constructed, maintained, and controlled it, even though it was not located on his property.

Continuous Possession

To establish the last element, continuous possession, claimants must demonstrate that their occupation, use or possession of the disputed property continued uninterrupted for the prescriptive period of ten years. This period of time begins to run at the time possession becomes adverse to the owner, which is generally, but not always at the time of entry.

Where the adverse possessor is an adjacent landowner, the continuous possession requirement can be satisfied by tacking on the time that their predecessor in title also adversely possessed the disputed property. However, to tack, the adverse possessor must demonstrate that their predecessor in title intended to, and actually did, turn over possession of the disputed property.

Additional Considerations

As noted above, the 2008 amendments to the Real Property Actions and Proceedings Law provide title owners with greater protection from adverse possession claims. Claimants need to be particularly mindful that the five elements described above must also be established by clear and convincing evidence, which is a heavier burden than is required in most civil actions. Thus, careful thought and preparation is crucial to the successful assertion of an adverse possession claim. Moreover, if unable to establish title by adverse possession, the claimant may be liable to the actual owner for damages for trespass.

Further, where the subject property is held in a governmental capacity or made inalienable by statute, the claimant will not be able to claim adverse possession against a municipality.

Meanwhile, property owners still need to be vigilant and take appropriate steps to safeguard their property. Although claimants have significant hurdles to overcome, they are not by any means insurmountable.

In either case, both those claiming adverse possession and those defending against a claim of adverse possession, should seek immediate legal counsel if a potential adverse possession claim exists or could be asserted.

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