CHANGES TO "ADVERSE POSSESSION" ENACTED

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        7915--C
           Cal. No. 1819

                                   I N  S E N A T E

                                    April 28, 2008
                                      ___________

       Introduced  by  Sens.  LITTLE, SEWARD -- read twice and ordered printed,
         and when printed to be committed to  the  Committee  on  Judiciary  --
         committee  discharged,  bill amended, ordered reprinted as amended and
         recommitted to said committee -- committee discharged  and  said  bill
         committed  to  the  Committee  on Rules -- ordered to a third reading,
         amended and ordered reprinted, retaining its place  in  the  order  of
         third  reading  --  again amended and ordered reprinted, retaining its
         place in the order of third reading

       AN ACT to amend the  real  property  actions  and  proceedings  law,  in
         relation to adverse possession

         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1. Section 501 of the real property  actions  and  proceedings
    2  law,  as added by chapter 312 of the laws of 1962, is amended to read as
    3  follows:
    4    S 501. {Action after entry. An entry upon real property is not  suffi-
    5  cient or valid as a claim unless an action is commenced thereupon within
    6  one  year  after  the making thereof and within ten years after the time
    7  when the right to make it descended  or  accrued.}  ADVERSE  POSSESSION;
    8  DEFINED. FOR THE PURPOSES OF THIS ARTICLE:
    9    1.  ADVERSE POSSESSOR. A PERSON OR ENTITY IS AN "ADVERSE POSSESSOR" OF
   10  REAL PROPERTY WHEN THE PERSON OR ENTITY OCCUPIES REAL PROPERTY OF ANOTH-
   11  ER PERSON OR ENTITY WITH OR WITHOUT KNOWLEDGE OF  THE  OTHER`S  SUPERIOR
   12  OWNERSHIP  RIGHTS,  IN  A  MANNER  THAT  WOULD GIVE THE OWNER A CAUSE OF
   13  ACTION FOR EJECTMENT.
   14    2. ACQUISITION OF TITLE. AN ADVERSE POSSESSOR GAINS TITLE TO THE OCCU-
   15  PIED REAL PROPERTY UPON THE EXPIRATION OF THE STATUTE OF LIMITATIONS FOR
   16  AN ACTION TO RECOVER  REAL  PROPERTY  PURSUANT  TO  SUBDIVISION  (A)  OF
   17  SECTION TWO HUNDRED TWELVE OF THE CIVIL PRACTICE LAW AND RULES, PROVIDED
   18  THAT  THE  OCCUPANCY,  AS  DESCRIBED IN SECTIONS FIVE HUNDRED TWELVE AND
   19  FIVE HUNDRED TWENTY-TWO OF THIS ARTICLE, HAS BEEN ADVERSE,  UNDER  CLAIM
   20  OF RIGHT, OPEN AND NOTORIOUS, CONTINUOUS, EXCLUSIVE, AND ACTUAL.
   21    3.  CLAIM  OF RIGHT. A CLAIM OF RIGHT MEANS A REASONABLE BASIS FOR THE
   22  BELIEF THAT THE PROPERTY BELONGS TO THE ADVERSE  POSSESSOR  OR  PROPERTY

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             { } is old law to be omitted.
                                                                  LBD16482-09-8

       S. 7915--C                          2

    1  OWNER,  AS THE CASE MAY BE.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS
    2  ARTICLE, CLAIM OF RIGHT SHALL NOT BE REQUIRED IF THE OWNER OR OWNERS  OF
    3  THE  REAL PROPERTY THROUGHOUT THE STATUTORY PERIOD CANNOT BE ASCERTAINED
    4  IN  THE  RECORDS  OF THE COUNTY CLERK, OR THE REGISTER OF THE COUNTY, OF
    5  THE COUNTY WHERE SUCH REAL PROPERTY IS SITUATED, AND LOCATED BY  REASON-
    6  ABLE MEANS.
    7    S  2. Section 511 of the real property actions and proceedings law, as
    8  added by chapter 312 of the laws of 1962, is amended to read as follows:
    9    S 511. Adverse possession under written instrument or judgment.  Where
   10  the occupant or those under whom {he} THE OCCUPANT claims  entered  into
   11  the  possession  of the premises under claim of {title} RIGHT, exclusive
   12  of any other right, founding the claim upon  a  written  instrument,  as
   13  being  a  conveyance  of the premises in question, or upon the decree or
   14  judgment of a competent court, and there has been a continued occupation
   15  and possession of the premises included in  the  instrument,  decree  or
   16  judgment,  or of some part thereof, for ten years, under the same claim,
   17  the premises so included are deemed to have been held adversely;  except
   18  that  when  they consist of a tract divided into lots, the possession of
   19  one lot is not deemed a possession of any other lot.
   20    S 3. Section 512 of the real property actions and proceedings law,  as
   21  added by chapter 312 of the laws of 1962, is amended to read as follows:
   22    S  512.  Essentials  of adverse possession under written instrument or
   23  judgment.  For the purpose of constituting an adverse possession  {by  a
   24  person  claiming  a title}, founded upon a written instrument or a judg-
   25  ment or decree, land is deemed to have been possessed  and  occupied  in
   26  {either} ANY of the following cases:
   27    1.  Where  {it has been usually cultivated or improved} THERE HAS BEEN
   28  ACTS SUFFICIENTLY OPEN TO PUT A REASONABLY DILIGENT OWNER ON NOTICE.
   29    2. Where it has been protected by a substantial {inclosure} ENCLOSURE,
   30  EXCEPT  AS  PROVIDED  IN  SUBDIVISION  ONE  OF  SECTION   FIVE   HUNDRED
   31  FORTY-THREE OF THIS ARTICLE.
   32    3.  Where,  although not {inclosed} ENCLOSED, it has been used for the
   33  supply of fuel or of fencing timber, either for the purposes of  husban-
   34  dry or for the ordinary use of the occupant.
   35    Where  a  known  farm  or  a  single lot has been partly improved, the
   36  portion of the farm or lot  that  has  been  left  not  cleared  or  not
   37  {inclosed}  ENCLOSED,  according  to  the usual course and custom of the
   38  adjoining country, is deemed to have been occupied for the  same  length
   39  of time as the part improved and cultivated.
   40    S  4. Section 521 of the real property actions and proceedings law, as
   41  amended by chapter 116 of the laws  of  1965,  is  amended  to  read  as
   42  follows:
   43    S 521. Adverse possession {under claim of title not written} NOT UNDER
   44  WRITTEN INSTRUMENT OR JUDGMENT. Where there has been an actual continued
   45  occupation  of premises under a claim of {title} RIGHT, exclusive of any
   46  other right, but not founded upon a written instrument or a judgment  or
   47  decree,  the premises so actually occupied, and no others, are deemed to
   48  have been held adversely.
   49    S 5.  Section 522 of the real property actions and proceedings law, as
   50  added by chapter 312 of the laws of 1962, is amended to read as follows:
   51    S 522. Essentials of adverse possession  {under  claim  of  title  not
   52  written}  NOT  UNDER WRITTEN INSTRUMENT OR JUDGMENT.  For the purpose of
   53  constituting an adverse possession {by  a  person  claiming  title}  not
   54  founded  upon  a  written  instrument  or  a judgment or decree, land is
   55  deemed to have been possessed and occupied in either  of  the  following
   56  cases, and no others:

       S. 7915--C                          3

    1    1.  Where {it has been usually cultivated or improved} THERE HAVE BEEN
    2  ACTS SUFFICIENTLY OPEN TO PUT A REASONABLY DILIGENT OWNER ON NOTICE.
    3    2. Where it has been protected by a substantial {inclosure} ENCLOSURE,
    4  EXCEPT   AS   PROVIDED  IN  SUBDIVISION  ONE  OF  SECTION  FIVE  HUNDRED
    5  FORTY-THREE OF THIS ARTICLE.
    6    S 6.  Section 531 of the real property actions and proceedings law, as
    7  amended by chapter 375 of the laws  of  1975,  is  amended  to  read  as
    8  follows:
    9    S  531.  Adverse  possession, how affected by relation of landlord and
   10  tenant.  Where the relation of landlord and tenant has existed  {between
   11  any  persons},  the possession of the tenant is deemed the possession of
   12  the landlord until the expiration of ten years after the termination  of
   13  the  tenancy; or, where there has been no written lease, until the expi-
   14  ration of ten years after the last payment of rent; notwithstanding that
   15  the tenant has acquired another title or has claimed to  hold  adversely
   16  to  his  landlord.  But  this  presumption shall cease after the periods
   17  prescribed in this section and such tenant may  then  commence  to  hold
   18  adversely to his landlord.
   19    S  7. Section 541 of the real property actions and proceedings law, as
   20  amended by chapter 375 of the laws  of  1975,  is  amended  to  read  as
   21  follows:
   22    S  541.  Adverse  possession,  how  affected by relation of tenants in
   23  common.  Where the relation of tenants in common  has  existed  {between
   24  any  persons}, the occupancy of one tenant, personally or by his servant
   25  or by his tenant, is deemed to have been the possession  of  the  other,
   26  notwithstanding  that  the tenant so occupying the premises has acquired
   27  another title or has claimed to hold adversely to the  other.  But  this
   28  presumption  shall cease after the expiration of ten years of continuous
   29  exclusive occupancy by such tenant, personally or by his servant  or  by
   30  his tenant, or immediately upon an ouster by one tenant of the other and
   31  such  occupying tenant may then commence to hold adversely to his coten-
   32  ant.
   33    S 8. The real property actions  and  proceedings  law  is  amended  by
   34  adding a new section 543 to read as follows:
   35    S  543.  ADVERSE  POSSESSION;  HOW  AFFECTED BY ACTS ACROSS A BOUNDARY
   36  LINE. 1. NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, THE EXIST-
   37  ENCE OF DE  MINIMUS  NON-STRUCTURAL  ENCROACHMENTS  INCLUDING,  BUT  NOT
   38  LIMITED  TO,  FENCES, HEDGES, SHRUBBERY, PLANTINGS, SHEDS AND NON-STRUC-
   39  TURAL WALLS, SHALL BE DEEMED TO BE PERMISSIVE AND NON-ADVERSE.
   40    2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE,  THE  ACTS  OF
   41  LAWN  MOWING  OR  SIMILAR  MAINTENANCE  ACROSS  THE  BOUNDARY LINE OF AN
   42  ADJOINING LANDOWNER`S PROPERTY SHALL BE DEEMED  PERMISSIVE  AND  NON-AD-
   43  VERSE.
   44    S 9. This act shall take effect immediately, and shall apply to claims
   45  filed on or after such effective date.