Legal Blog

Adverse Possession: What Every New York Land Owner Must Know | Part Four

This is part four of a four-part series. Read parts one, two, and three.

Dry sunflower fields with a red house in the horizon.

De Minimis Adverse Possession

It might happen that your friendly neighbor plants shrubbery that extends on your land, or maybe a dry wall. On the one hand, you want to make sure that you don’t lose title to your land. On the other hand, you like your neighbor, and the shrubbery or the drywall actually look very nice. Luckily, your neighbor is not adversely possessing your land. Adverse possession that is “de minimis” does not qualify for adverse possession.[1]De minimis” acts and occupations include “non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls…”

For an encroachment to be structural – and therefore qualify for adverse possession – it must be “part of a structure [or] provide support to something else.”[2] The construction of a tree house or an above ground swimming pool are not de minimis[3] while a rock wall that supports nothing else is de minimis. [4]

Adverse Possession Within One Year

As stated above, adverse possession generally takes ten years to take effect. However, walls encroaching over the property line by six inches or less, if the wall is part of a building, will accrue adverse possession much faster.[5] This also applies to overhanging eaves.[6]

Within the first year after construction, the landowner onto whose land the adverse possessor has built the offending wall can ask and sue to have the offending wall removed.

If an action for damages is brought within two years of the construction, upon payment of the damages, the owner of the structure gets title to the strip of land that the wall occupies.[7]

After two years, the owner of the offending structure will get an easement to have the wall in the place. An easement is a right over land; in short, the adverse possessor is legally allowed to have the wall in place, but he does not get title to the land it stands upon.[8]

Clear and Convincing Evidence

There is good news for land owners. Not only are the requirements for adverse possession numerous (as outlined above), but in order to get title through adverse possession, it must also be proven by “clear and convincing” evidence.[9] This standard is higher than the usual civil “preponderance of the evidence” standard. The fact finder must be satisfied that the evidence presented by the proponent of the position “makes it highly probable that what (he, she) claims is what actually happened.”[10]

What Can Land Owners Do to Protect Themselves?

1. Be Vigilant

The basic takeaway is this: Keep an eye out. A land owner should make sure he knows where the exact boundaries of his property are. Make sure nothing extends over your property lines that is not yours. Hire a surveyor if you are in doubt. Survey your land frequently and carefully. Confirm that you can access everything you should be able to.

2. Give Permission

In addition, an easy and counter-intuitive way to stop adverse possession is a surprisingly friendly strategy: Give the adverse possessor your permission to use the land when he or she asks for it.[11] That is because asking for permission implies that the occupier recognizes that he or she has no legal right to be where he or she is. Therefore, they are not occupying the land under a “claim of right” and cannot be adverse possessors.[12] This is a great way to keep the peace with your neighbor whose tool shed is halfway on your lawn and that you otherwise get along great with. Ask your neighbor to sign an agreement whereby he can use your land for certain activities and at certain times; in exchange he should pay you a nominal amount, such as one dollar per year.

Similarly, requesting permission to occupy the property will negate the hostility and adversarial requirements[13] and the notice requirements.[14] Making a request to purchase the occupied property during the ten-year vesting period will destroy hostility.[15] Therefore, invite a discussion – preferably by letters or email – in which the neighbor may ask for permission to use or buy your land. Even if you do not give the permission, the effect is the same – the simple fact that they asked for permission shows that they recognized your right to the land.

Q&A

1. What About Tenants that Stop Paying?

Tenants are dealt with in RPAPL § 531 and 541. Per RPAPL § 531, where there was a landlord-tenant relationship, any possession of land by the tenant is deemed the possession of the landlord for ten years after the tenancy ended, and where there was no written lease, ten years after the last payment of rent.[16] In other words, a tenant will take ten years to become an adverse possessor; the entire adverse possession process will take twenty years. A tenant at will cannot acquire by adverse possession against his landlord.[17]

In the case of tenants in common, the matter is governed by RPAPL § 541. The occupancy of one tenant in common is deemed to be the possession of the other for ten years.[18] In other words, a tenant in common will take ten years to become an adverse possessor; the entire adverse possession process will take twenty years. However, where a tenant in common was ousted by one tenant, the other tenant may then start to adversely possess.

For example, the erection of house and improvements within a disputed area is so open, public, and unequivocal that it clearly constitutes ouster and renders inapplicable the additional 10-year period.[19]

2. What About Easements by Prescription?

An easement is a person’s right to use another person’s land; for example, a neighbor may have the right to walk across another’s lawn to get somewhere. The requirements for establishing a prescriptive easement – i.e. not an easement that is negotiated by the parties – are similar to adverse possession.[20] The person wanting the easement must establish by clear and convincing evidence that the use of the land was adverse, open and notorious, continuous and uninterrupted for 10 years.[21] However, exclusivity is not essential to a claim for easement by prescription.[22] In other words, to establish an easement by prescription, the party must establish by clear and convincing evidence possession that was hostile and under a claim of right; actual; open and notorious; and continuous for ten years.[23]

3. What if the 10-Year Period Finished / Vested Before 2008?

The 2008 amendments to the adverse possession statutes do not apply where the adverse possessor’s property right vested prior to the enactment of those amendments. [24]

4. What if my Neighbor Is the Government or Part of the State of New York?

The state asserting title by adverse possession is bound by the same laws and must prove the same facts as an individual.[25]

5. So What exactly was amended in 2008?

In 2008, the New York State Legislature amended Article 5 of the Real Property Actions and Proceedings Law (RPAPL) and altered the standards for an adverse possession claim. There were three main changes. First, the definition of “claim of right” was added:

“A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner…” N.Y. RPAPL § 501(3)

 

Second, one of the traditional requirements of possession is changed from:

land is deemed to have been possessed and occupied . . . [w]here it has been usually cultivated or improved.” N.Y. RPAPL § 522 (1962)

to:

land is deemed to have been possessed and occupied . . . [w]here there have been acts sufficiently open to put a reasonably diligent owner on notice.” N.Y. RPAPL § 522 (2008).

 

Finally, it adds that de minimis nonstructural encroachments and maintenance activities are now permissive:

1… the existence of de minimus 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.

2… the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner’s property shall be deemed permissive and non-adverse.

N.Y. RPAPL §543.

The text and supporting legislative history indicate that the 2008 legislation was designed to discourage “bad faith” adverse possession claims possible under previous law.[26]

 


[1] RPAPL § 543[2] Sawyer v Prusky, 71 AD3d 1325, 1327 (3d Dep’t 2010)

[3] Healy v Amedore Quantum, LLC, 24 Misc 3d 1221[A] (Sup Ct, Albany Co. 2009)

[4] Sawyer v Prusky, 71 AD3d 1325 (3d Dep’t 2010)

[5] RPAPL § 611(2)

[6] Sova v Glasier, 192 AD2d 1069, 1070 (4th Dep’t 1993)

[7] Chi Wei Chan v 2368 W. 12th St. LLC, 25 Misc 3d 823 (Sup Ct, Kings Co. 2009)

[8] There is a reason for this legal arrangement; if after two years the adverse possessor gained full ownership rather than an easement, he could start building the wall again and gain another six inches of property, thus expanding his land over time.

[9] Walling v Przybylo, 7 NY3d 228, 232 (2006), Warren v Carreras, 133 AD3d 592, 594 (2d Dep’t 2015), Sq.-Arch Realty Corp. v Polsinelli, 2015 NY Slip Op 32228[U], *19 (Sup Ct, NY Co. 2015).

[10] IA PJI 1:64 (3d ed. 2016).

[11] United Pickle Prods. Corp. v Prayer Temple Community Church, 43 AD3d 307, 308-309 (1st Dep’t 2007) (“[N]othing short of seeking permission for use from the record owner negates hostility”); permission by the owner will break the notice requirement as the owner then lacks notice of the intent to adversely possess. See also Abakporo v Abakporo, 2018 NY Slip Op 30494[U], *5 (Sup Ct, Queens Co. 2018) and Kheel v Molinari, 2017 NY Slip Op 32058[U], *6 (Sup Ct, Tompkins Co. 2017) (“The purpose of the hostility requirement is to provide the tile owner notice of the adverse claim though the unequivocal acts of the usurper. Hostility will be presumed if the use is open, notorious and continuous for the 10 year period. …Here, the parties are neighbors, and [the neighbor] has been present to observe all the acts.”)

[12] Air Stream Corp. v 3300 Lawson Corp., 99 A.D.3d 822 (2d Dep’t 2012), app. denied, 21 N.Y.3d 852 (2013) (Property owner did not establish the hostility needed to support its adverse possession claim under former RPAPL §§ 521 and 522 because there had been a friendly relationship between the owner and the neighbor and once the neighbor acquired the strip, the owner’s use of that strip was with the neighbor’s permission and because the neighbor stated his objection to the owner’s use of strip of land by building a cement platform within the prescriptive period.)

[13] Huyck v 171 Tenants Corp., 2018 NY Slip Op 33026[U], *17 (Sup Ct, NY Co. 2018), Prospect Owners Corp. v Sandmeyer, 62 AD3d 601, 603 (1st Dep’t 2009), Fairmont Tenants Corp. v Braff, 162 AD3d 442 (1st Dep’t 2018).

[14] Abakporo v Abakporo, 2018 NY Slip Op 30494[U], *5 (Sup Ct, Queens Co. 2018).

[15] Oppedisano v Arnold, 143 AD3d 873 (2d Dep’t 2016)

[16] Gallea v Hess Realty Corp., 128 AD2d 274, 277 (4th Dep’t 1987), affd 71 NY2d 999 (1988); Risi v Interboro Indus. Parks, 99 AD2d 466 (2d Dep’t 1984)

[17] Tucci v Giarrusso, 124 N.Y.S.2d 17, 1953 N.Y. Misc. LEXIS 2076 (N.Y. Sup. Ct. 1953).

[18] This is a presumption that can be rebutted with showing of adverse possession. Article Ten Props. v Kocak, 164 A.D.2d 448 ( 3d Dep’t 1990).

[19] Guardino v Colangelo, 262 A.D.2d 777 (3d Dep’t 1999)

[20] See Stickler v Halevy, 794 F Supp 2d 385 (EDNY 2011) for an extensive discussion of easements by prescription in New York.

[21] Beutler v Maynard, 80 AD2d 982 (4th Dep’t 1981), affd 56 NY2d 538 (1982)

[22] King’s Ct. Rest., Inc. v Hurondel I, Inc., 87 AD3d 1361 (4th Dep’t 2011)

[23] Walling v Przybylo, 7 NY3d 228 (2006)

[24] Estate of Vertley Clanton v City of New York, 153 A.D.3d 787 (2d Dep’t 2017)

[25] Ostrander v Bell, 199 A.D. 304 (3d Dep’t 1921), aff’d, 234 N.Y. 566 (1922)

[26] Stickler v Halevy, 794 F Supp 2d 385, 396 (EDNY 2011)


 

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