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A reader forwarded a copy of a "Memorandum in Opposition" (dated July 2, 2008) issued by the members of the Real Property Law Section of the New York State Bar Association (NYSBA).
The document encouraged Governor Patterson to veto the "hastily negotiated" amendments to the law of adverse possession and expressed concern that the legislation will likely "have significant adverse consequences for real estate ownership in New York."
Citing numerous "drafting ambiguities," and a reliance upon "an analysis of the mind of the adverse possessor," NYSBA had asked that any modifications be delayed until "all parties" were given an opportunity "to sit down and draft an acceptable statute that would protect the interests of all the people of New York."
Unfortunately, the Governor signed the bill into law on July 8, 2008, and years of contentious litigation most certainly awaits New York property owners facing adverse possession claims. (Interestingly, NYSBA's Memorandum provides an outline of the legal issues and arguments which will likely arise over the months and years to come.)
 To download a copy of the NYSBA memo, please use this link: NYSBA opposes adverse possession (7/02/08)
To view the attachment referenced in the NYSBA memo, please use this link: Attachment to NYSBA Memorandum in Opposition
To view our posts on this topic, please use this link: Adverse Possession
 In West Middlebury Baptist Church v. Koester, after Kevin Koester built a fence around a parcel of land believed to be his, the West Middlebury Baptist Church filed suit to determine who was the property's true owner.
The Church and Koester owned adjacent properties in West Middlebury, linked by a 1.19 acre "pie-shaped" parcel of land which the church claimed ownership.
An 1832 deed, which conveyed the property to the Church, described the northern boundary which the Church believed included the 1.19 acres, while Koester's deed made no reference to the area. Interestingly, when both parties employed surveyors, the mutual conclusion was that the 1.19 acres belonged to Koester and in 1999 he fenced-in the parcel.
When the Wyoming County Supreme Court found Koester to be the property's rightful owner, the Church appealed to the Appellate Division, Fourth Department.
The AD4 was of the opinion that the Church had acquired title to the property by way of "adverse possession" since it had open and exclusive use of the property for parking and treated it as its lawn for a 10 year period, had maintained two horse sheds on the property for nearly a century (prior to 1995 or 1996), and cultivated the area by "mowing, raking, and clearing." *
Was that a miracle or what?
To download a copy of the Appellate Division's decision, please use this link: West Middlebury Baptist Church v. Koester
* As a result of the recent statutory amendments to the law, mere "mowing, raking, and clearing" no longer cuts it.
For additional posts on this topic, please use this link: Adverse Possession
 Yesterday, Governor Patterson signed an amendment to the state's controversial law of "adverse possession" -- a legal loophole that allows a person to stake a right to real property that is actually owned by another.
Of course, there are a number of elements that need to be satisfied before that "taking" can occur but, in recent years, more and more owners were losing parts of their properties to neighbors who claimed to have fenced-in the disputed area, mowed the grass, or otherwise cared for the parcel for a consecutive ten-year period.
The new law has eliminated some of the absurdities that had crept into the caselaw and previously supported a claim. Now, "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. ... [L]awn mowing or similar maintenance across the boundary line of an adjoining landowner's property shall be deemed permissive and non-adverse."
Here's the new law in all its glory:
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| Wednesday, July 9, 2008 |
| Bill Text - S07915 |
| Back | New York State Bill Search | Assembly Home |
See Bill Summary
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. | |
| | |
Continue reading "CHANGES TO "ADVERSE POSSESSION" ENACTED" »
 In Perfito v. Einhorn, when the Perfitos filed suit to remove their neighbors from a portion of their property, the Einhorns claimed ownership of the disputed parcel based on the law of "adverse possession."
The Einhorns had a fence which encroached several feet onto the Perfitos' property. When the latter demanded the fence's removal, the Einhorns claimed that they had been told by their real-estate broker that the fenced-in area belonged to them and thus treated the area as their own since its purchase.
A witness also came forward on behalf of the Einhorns and indicated that he had resided at the property for many years prior to its sale, that the fence had been erected in 1971 by his parents, and that they had always exercised dominion and control over the disputed portion of yard -- in an open and obvious manner -- without their neighbors' permission.
The Westchester County Supreme Court sided with the Perfitos after finding "no evidentiary support for the critical and dispositive finding that the defendants and their predecessors had occupied this disputed property under a claim of right and without permission from plaintiff's predecessor." According to that court, the mere presence of a fence wasn't enough to establish a hostile invasion or infringement upon the true owners' rights to the land -- a necessary element of an adverse possession claim. The fence's erection was a "neighborly accommodation," that didn't satisfy the law.
We always thought fences were far from "neighborly" or "accommodating."
 To download a copy of the Westchester County Supreme Court's decision, please use this link: Perfito v. Einhorn
 In De Laurentis v. De Laurentis, Jeanne De Laurentis claimed a “constructive trust” -- that she was the co-owner of certain real property that was held in the name of her brother, Vito De Laurentis, Jr.
Jeanne alleged that the property had been transferred to Vito by their father, with the specific instructions that “a 50% ownership interest in the property belonged to her, which was to be held in trust by [Vito] and distributed to her upon the death of [their father].” Jeanne also asserted that after their father’s death, Vito retained exclusive possession of the subject property without her consent. When he filed a motion to dismiss Jeanne’s case, the Suffolk County Supreme Court granted the request. On appeal, the Appellate Division, Second Department, was equally unsympathetic to Jeanne’s claim. The AD2 held that “[a] cause of action to impose a constructive trust or equitable lien is subject to a six-year limitations period that ‘commences to run upon the occurrence of the wrongful act giving rise to a duty of restitution.’” When a constructive trustee wrongfully withholds property, the clock starts to tick the moment the trustee breaches the agreement to transfer the property. In this case, the wrongful act occurred on July 31, 1995, when Jeanne’s father died. Inexplicably, she didn’t start her case until September 13, 2006; some eleven years later (five years beyond the six-year window a claim could be filed). As a result, the AD2 was left with little choice but to affirm the case’s dismissal. Not a very constructive outcome, now was it? To download a copy of the Appellate Division’s decision, please use this link: De Laurentis v. De Laurentis
 In Sugarman v. Malone, Lydia Sugarman sought to secure a Manhattan cooperative apartment from her sister-in-law’s husband by way of “adverse possession.”
Sugarman had lived in the apartment since 1984 with her late husband, Howard, who died in 1990. The owner of the shares was Howard’s father, who died in 1995, leaving the shares to Howard’s sister. She then died a year later, leaving the shares to her husband, Laurence Malone. Malone didn’t assert his interest in the apartment for some nine years. Consequently, Sugarman filed suit in 2005, “seeking a declaration that she is the rightful owner of the shares through adverse possession.” When the New York County Supreme Court granted Malone’s request to dismiss the case, Sugarman appealed to the Appellate Division, First Department. The AD1 determined that the element of “hostility” -- which is one of the elements required in any adverse possession case -- was lost when Sugarman offered to buy the apartment in 1998, while the governing ten-year statutory period was still running. We're guessing Sugarman found nothing sweet about that. To download a copy of the Appellate Division’s decision, please use this link: Sugarman v. Malone
 A reader sent us the following question:
Dear Mr Ferrara: We read with agreement your opinion in the article on Adverse Possession in the NYTimes, Sunday Nov.11. We are currently defendants in an adverse possession case in New York State that has been lengthy and costly. The only benefit of this law is to allow dishonest neighbors to acquire free land. For the benefit of other honest homeowners who may be victims of this unfair law, can you suggest alternate ways to get justice other than hire expensive lawyers and endure the cumbersome legal system? Is it possible for defendants to appeal to an arbitration court, land court or town council that can hear the case and judicate? Thank you. -M. Dreyer
It saddens us to hear about these stories and rest assured we are most empathic to your plight. Regrettably, until such time as the law is changed, property owners MUST remain vigilant about safeguarding their property lines. Regular surveys and inspections are the best way to keep track of what's occurring. And, if a "trespass" is found, one must be proactive about addressing and correcting the situation. While arbitration can be used to address disputes, all sides must consent in order for that process to be a viable option. And, should a neighbor draw a "line in the sand," the only "iron clad" way we can recommend to protect one's rights in these kind of cases is to file a lawsuit and secure an appropriate court order.* We wish you well. To view our related posts on this topic, please use this link: Adverse Possession __________________________ *Please keep in mind that his forum is intended to provide readers with generalized information and commentary. Thus, the foregoing response neither constitutes legal advice nor a definitive response to the question presented. Readers are strongly encouraged to consult with an attorney to secure a formal opinion which will more adequately and directly pertain to their particular circumstances.
 Just in case you missed it, our partner Lucas A. Ferrara was in yesterday's New York Times.
In a piece, entitled "Adverse Possession: Mind Your Property," Lucas offered his insights on recent legislative developments and the state of the adverse possession law. Here's the piece in its entirety: 
November 11, 2007 Your Home Adverse Possession: Mind Your Property EARLIER this year, the New York State Legislature passed a bill that would bar a claim of adverse possession, a centuries-old doctrine that allows a person to claim title to property that he or she has used for a specific period of years, if the person making the claim had “actual knowledge” that the property was owned by someone else. The bill was vetoed in August by Gov. Eliot Spitzer, who said that while “at first blush” the bill “would seem to be a logical improvement to the law,” in reality the change would result in “extensive litigation of virtually every adverse possession claim.” The Legislature’s action and the governor’s veto highlighted the harsh realities of adverse possession. “Adverse possession is a legal theory whose time has come and gone,” said Lucas A. Ferrara, a Manhattan real estate lawyer. “There is little in the law as it stands now to stop the unscrupulous from claiming title to property they know full well is not theirs. And it obviously penalizes the absentee owner.” Under the current law, as articulated by the Court of Appeals in June 2006 in the case of Walling v. Przybylo, a claim of adverse possession can be made if an individual “openly, notoriously and exclusively” uses someone else’s property continuously for 10 years, believing he has the right to do so. One of the main issues in the case was whether a person could assert a valid claim if he knew he did not own the property. The court ruled that even if a person knew the property he was using was not his, he could indeed make a claim of adverse possession, provided the time period and the other elements were met. Adam Leitman Bailey, another Manhattan real estate lawyer, said that by passing its adverse possession bill, the Legislature essentially attempted to overturn the Court of Appeals decision by barring adverse possession if the adverse possessor knew the property was owned by someone else. Terrence A. Oved, also a Manhattan lawyer, said, “This has practical and potentially devastating consequences for unsuspecting landowners.” He noted that many people who own land in rural areas rarely visit it and more rarely walk the property lines, even if they know where the lines are. Having the land surveyed will determine the property lines, and markers like fences and “no trespassing” signs can be placed on the boundaries. If an encroachment is discovered, one way to defeat an adverse possession claim is to give written permission to the adverse possessor to use the land. “If permission has been given, the adverse possessor cannot assert that his use of the property was hostile,” Mr. Oved said. This was one of the tests in the Court of Appeals decision. Alternatively, he said, a landowner can demand that the encroachment be removed immediately and can sue if necessary. Mr. Ferrara said one disturbing element of adverse possession is that the true owner pays taxes on property being used by someone else. “It’s unfair,” he said, “and it’s un-American.”
Well done, Lucas!
 The Governor's recent veto notwithstanding, it’s still completely legal in the State of New York to take another’s real estate, without paying for the privilege, as long as certain criteria are satisfied. That process or procedure is known as “adverse possession.”
In order to win such a claim, a proponent must establish that possession is hostile and under a claim of right, actual, open and notorious, exclusive and continuous for a 10-year period. If just one of these elements is missing, the claim will fail. In Comrie, Inc. v. Holmes, Comrie filed an adverse possession claim against a strip of land situated between its property and that owned by the estate of a deceased neighbor. [The estate had acquired title to that strip in 2004 (by way of a quit claim deed).] On motion, the Fulton County Supreme granted the Holmes’s request to dismiss the adverse possession claim, and the Appellate Division, Third Department, affirmed. It was undisputed that Comrie purchased its property in October of 1999, and commenced its adverse possession case, claiming ownership to the disputed parcel, a mere five years later. In order to succeed, Comrie would have had to “tack” its adverse possession claim to that of a predecessor-in-interest, meaning Comrie needed to have “piggybacked” on its predecessor’s claim in order to satisfy the 10-year requirement. (A fact neither alleged nor demonstrated in this case.) In addition, since the deed which gave Comrie title expressly excluded the disputed parcel from the property’s legal description, that provided the AD3 with yet an additional basis upon which to dismiss the adverse possession claim. Go ahead! 'Tack that! For a copy of the Appellate Division’s decision, please use this link: Comrie, Inc. v. Holmes -------------------------- For our other blog posts on this topic, please see this link: Adverse Possession
 Yes, folks, the adverse possession saga continues.
Yesterday, we reported that Governor Spitzer rejected the Legislature's attempt to amend the law of adverse possession. In a "Veto Message - No. 153," the Governor declined to approve the bill citing the "radical impact" it would have on the state's adverse possession laws and the "significant adverse consequences" it would have on the state's property owners. The Message notes, in part, as follows: This bill could have significant adverse consequences for New York property owners. The addition of a "knowledge" element to the statute of limitations would likely result in extensive litigation of virtually every adverse possession claim, and thus would undermine the certainty that the statute of limitations was established to provide. The protections against future litigation that a statute of limitations affords will be unavailable for this class of title claims, which could also impact the availability and cost of title insurance.
The Message discloses that the amendment was opposed by the Real Property Law Section of the New York State Bar Association and the Property Rights Foundation of America. To view a copy of the Governor's Message, please use this link: Veto Message - No. 153 For our other blog posts on this topic, please use this link: Adverse Possession
NEWSFLASH! On August 28, 2007, Governor Spitzer vetoed the adverse possession bill that had been the subject of our recent blog posts. While the proposed legislation was certainly flawed, this development is viewed as a major setback for property owners throughout the state. One reader wrote: We are back to square one. "Good" news for those who adversely occupy property, and "bad" news for the affected owners. I thought the Governor would sign it into law. Even though it was not a perfect bill, it eliminated a "dishonest state of mind." And since the Governor had been a vigilant Attorney General and prosecuted some Wall Street "bigs" for their dishonesty, I thought we would prevail. I was wrong.
To download a copy of the Bill Summary, please use this link: S05360 ---------------------------- For our other blog posts on this topic, please use this link: Adverse Possession
 We received a letter from Robert M. Milner, Esq., litigation partner at Robinson Brog Leinwand Greene Genovese & Gluck P.C., in response to a recent post on "adverse possession" and the anticipated statutory changes.
In a most thoughtful analysis, Mr. Milner shared his concerns about the proposed modifications to the law (which has made it way to Governor Spitzer) and suggests that a more "in depth study" of the governing elements and caselaw is warranted. We concur. In fact, we have observed in our prior posts that the proposed tweaks may be fundamentally flawed and may not achieve the result property owners were anticipating.* Mr. Milner's letter (dated August 24, 2007) follows: Dear Mr. Ferrara: I read with interest your brief article [WILL CHANGE TO ADVERSE POSSESSION LAW MAKE A DIFFERENCE?] regarding the efforts to reverse, by legislation, the Court of Appeals Decision in Walling v. Pryzbylo. As one who has frequently litigated this and other similar issues, primarily in the Second Department, I have more than a passing interest in these activities. One of the cases cited in Walling was a case which I had litigated, namely Harbor Estates Limited Partnership v. May, 294 A.D.2d 399. The Harbor Estates case involved a small group of approximately 15 homes that were built on a site purchased by the developer from the City of New York. The site was part of a much larger parcel consisting of an overgrown, undeveloped and debris-ridden site which had been used as a dump by the community for many, many years. The homeowners who purchased houses in this newly developed community complained to the City concerning the fact that their backyards were invaded by rodents and when they got no response from the City after numerous attempts many if not all of the homeowners built out their rear yards, installed pools, cultivated the newly added land and enclosed the same. This situation existed for almost 15 years with the homeowners apparently believing that the City had long since abandoned the lot. Subsequently a new developer purchased the remaining land from the City and desired to build more than 150 homes. The developer commenced legal action to eject all of the homeowners who had build out on their land from the site. The defenses interposed included claims of adverse possession. The defendant in the cited case was the first test case and he testified as to his belief that the property had been abandoned New York City property. It was this admission that was held, by the Second Department, to constitute an admission barring him from forever claiming adverse possession. When I researched the case, I believe my research reflected that the majority view in this country was the view adopted by the Court of Appeals in Walling, represented by the then prominent 3rd Dept. case, Birkholz v. Wells, 272 A.D.2d 665. One of the questions I argued in that case was whether or not an admission made subsequent to the running of the statutory period for adverse possession would destroy the requirement of hostility. There was authority that such an admission would not bar a finding of adverse possession. Ahl v. Jackson, 272 A.D.2d 965; City of Tonawanda v. Ellicott Creek Homeowners Association, 86 A.D.2d 118. The court, however, held that the timing of the admission was irrelevant and that the date of the acquisition of knowledge of the prior ownership was the measuring date. The proposed legislation would probably change the result in the Harbor Estates case, cited above, because my client could not and did not have “actual knowledge” of the prior ownership. He merely assumed that it was an abandoned City lot. Another interesting Second Department case which I litigated involving issues of prior ownership was Zolotov v. Toussie, 306 A.D.2d 274 where, although the issue was raised by defendant the Second Department virtually ignored the issue. The case dealt with the purchase of a residential ocean front home with a large front lawn, facing the ocean, and abutting a concrete walkway in Manhattan Beach, Brooklyn, which everyone referred to as the “Esplanade”. The property was fenced in and cultivated for a period of more than 40 years. The plaintiff acquired title only a few years before the lawsuit was brought and, by virtue of tacking, alleged to own the entire area of the lawn, right to the paved walkway. In fact, the Esplanade consisted not only of the paved walkway but the adjacent 20 feet of what was the plaintiff’s lawn area. The defendant raised the issue that by reason of a title survey and title insurance the plaintiff and his predecessors in interest had to know that the property was not owned by them. Interestingly the Esplanade, consisting of both the 20 foot concrete walkway and the 20 feet of adjacent lawn which continued similarly, for many blocks in the Manhattan Beach community was privately owned but was not taxed. The Appellate Division affirmed a finding of adverse possession in favor of the plaintiff and held merely that the plaintiff had satisfied all of the requirements. One must assume that they adopted the plaintiff’s position that once the other elements of adverse possession were proven hostility under a claim of right or title was presumed. Once again, however, I do not believe that the result would be affected if the proposed legislation passes. As you note in your article “blind indifference is encouraged by the language of the statute”. Clearly in the Zolotov case my client had no knowledge whatsoever that his enclosed front lawn was owned by anyone else. I believe it would be highly uncommon for a residential purchaser, to review a title report and title documents prior to purchasing a home, leaving that task to his or her attorney. Finally, in Casini v. Sea Gate Association, 262 A.D.2d 593, the court found that my client, a homeowners association owning title to most of the bed of the streets of the community of Sea Gate was entitled to adverse possession of a piece of land at the intersection of a number of streets which allegedly had been purchased by the plaintiff at an in rem sale; the land being purchased consisting of a series of undeveloped lots plus the bed of a publicly used street in the private community and the traffic island which had been improved and enclosed. The in rem sale was apparently not the first in rem sale of the same property but the holding period in between each in rem sale was more than the statutory minimum. The issue primarily involved adverse possession of a municipally owned property held for a proprietary as opposed to governmental purposes and I was successful on that issue as well as on all other elements of proving the adverse possession claim. In the Casini case, an argument could have been made, but was not, that the property was known, at least constructively, to be owned by the City of New York because of the prior in rem proceedings as well as the current in rem proceedings of which the Association was purportedly given notice. The case does not obviously fit into the set of facts one normally finds in an adverse possession case but the result was well justified and equitable result since the property literally lay in the bed of an intersection of streets and the plaintiff claimed a desire to construct a residence on the traffic island itself. One other matter to throw into the breach is the fact that some courts have found that inadvertent possession or possession by mistake may still support a finding of adverse possession. See, e.g., Bradt v. Giavannone, 35 A.D.2d, 322, another 3rd Dept. case. This issue, when it comes up, usually deals with the element of “hostility,” but I believe that it also bears on the knowledge of prior ownership since the element of “hostility” is frequently presumed. In any event it makes for interesting discussion. Even in the presence of actual knowledge perhaps esoteric title issues such as that involved in the Walling case are deserving of entirely separate treatment since it is often difficult for any homeowner to entirely evaluate his title to certain lands or boundaries which may be in dispute. Rather than the knee jerk reaction to the Walling case which resulted in the proposed legislation which you report has found such wide support would the issue not be better dealt with after sustained analysis of both traditional principles of real estate law and a careful review of the treatment afforded by other states. The issue is, I believe, deserving of a far greater in depth study than that which appears to have been conducted. Very truly yours, Robert M. Milner
Our thanks for your insights, Mr. Milner. Clearly, the law needs to be sheared. ------------------------------ *For our other blog posts on this topic, please use this link: Adverse Possession
 In United Pickle Products Corp. v. Prayer Temple Community Church, the Appellate Division, First Department, granted a pickle company title to a parcel of land that had been owned by a church.
United Pickle Products held a lease to property located at 4370 Park Avenue in the Bronx, for use as a factory. To its north was a 25-foot square parcel, improved by a building, which was accessible only through United Pickle Product’s factory. Although owned by the Prayer Temple Community Church since 1976, United Pickle Products had exclusively used and occupied the building for storage since 1979. When United Pickle Products brought an action to quiet title, the Bronx County Supreme Court denied the parties’ motions for summary judgment but, on appeal, the Appellate Division, First Department, ruled in United Pickle’s favor. As we have previously observed, to prevail on an adverse possession claim, a party must show its possession throughout the 10-year statutory period was: Noting that the small parcel had been improved by a structure, was walled off, and accessible only by way of United Pickle Product’s space, the AD1 concluded that all the governing adverse possession elements had been fulfilled. Its concession that it had never granted United Pickle Products permission to use the building didn’t help Prayer Temple’s case. (Although its Bishop claimed that the building’s prior occupant, a milk distributor, had given United Pickle Products permission to use the property, the AD1 held that such "permission" would not have vitiated the hostility of United Pickle Product’s possession since the milk distributor was not the property’s owner.) It seems this poor defendant never had a prayer. To download a copy of the Appellate Division's decision, please use this link: United Pickle Products Corp. v. Prayer Temple Community ---------------------------- For our other blog posts on this topic, please use this link: Adverse Possession
 Upon purchasing his property in 2004, Ronald Trombly erected a fence which prevented his neighbor, Richard Goss, from accessing a portion of a driveway that crossed onto Trombly’s land.
Although Goss secured a deed to his property back in 2001, he had been utilizing the driveway for some eight years prior, pursuant to “rent-to-own” agreement. For the entire time, Goss had access to a public highway by means of a 12-foot wide strip of land which began on his property but continued until it was completely on Trombly’s property. In Goss v. Trombly, Goss sought to “quiet title” to that portion of the driveway which traversed Trombly's land and claimed ownership by adverse possession. The Clinton County Supreme Court agreed and directed Goss to submit a “course reading” so that the new boundary lines could be defined. On appeal, the Appellate Division, Third Department, reiterated that to establish title by adverse possession, one must demonstrate by “clear and convincing evidence” that for a 10-year period possession was “open, notorious, exclusive, continuous, hostile and under a claim of right.” Additionally, the disputed parcel must be either “cultivated or improved” or “protected by a substantial enclosure.”
While Trombly contested any hostility or adversity by Goss, the AD3 dismissed as “pure speculation" Trombly’s assertion that he had granted Goss permission as a neighborly accommodation. According to the AD3, Goss’s daily use of the driveway for 11 years was adverse to Trombly’s ownership interests and was clear and convincing evidence of “hostility.” Although the acts necessary to establish cultivation or improvement will vary depending on the “nature and situation of the property,” such conduct must be consistent with that of a “thrifty owner.” According to the AD3, Goss’s maintenance related activities -- plowing the driveway, scraping ice in the winter, mowing the grass along its borders, trimming overhanging shrubbery, and twice filling divots in the gravel -- matched those of a driveway owner. While Trombly claimed that the Supreme Court erred in directing Goss to submit a course reading to define the driveway’s new boundary line, the AD3 held that “a precise description of the adversely possessed area was necessary to appropriately quiet title and ensure marketability of title to both parties’ parcels.” Clearly, the court wanted to ensure that these owners proceeded on the right course. For a copy of the Appellate Division's decision, please use the following link: Goss v. Trombly
 While it isn't uncommon for parents to insist that their grown children move out of the family home, few actually bring a summary proceeding to recover possession. But that is precisely what happened in Goffe v. Goffe.
Initially, Jason Goffe was given permission by his mother to stay (for one night) in his parents' home. Thereafter, Mrs. Goffe agreed to allow her son to stay “until further notice.” Faced with the prospect of a foreclosure, Mr. and Mrs. Goffe requested that Jason vacate the property. When their son refused, the Goffes filed suit, alleging that Jason entered into possession without consent and that he was a “squatter.” After trial, the District Court of Nassau County, First District, awarded the Goffes possession based on Jason’s “unlawful holdover.” On appeal, the Appellate Term, Second Department, reversed and dismissed the case. A squatter proceeding is only available when an individual takes possession of space without permission. Since Jason originally entered the home with his mother’s consent, a “squatter” proceeding was not maintainable and the case had to be dismissed. While the AT2's decision was silent as to the correct eviction procedure to be utilized, before a new case could be started, the Goffes would likely need to serve a 30-day notice (predicated upon their son's status as a "tenant-at-will" or "at sufferance.") 
There's something to be said for abstinence. Wouldn't you agree? For a copy of the following Appellate Term’s decision, please use this link: Goffe v. Goffe
 In 1981, Nancy Gold acquired title to property which had an easement giving her neighbor, Carol Majkut, access to a local route by way of a gravel road and bridge situated on Gold’s land. Gold believed that the easement had been abandoned when she purchased the parcel, apparently because the bridge was in a state of disrepair.
In 1998, Patrick Di Cerbo purchased Majkut's lot and repaired the bridge and road in 2002. A year later, Gold filed suit in Schenectady County Supreme Court alleging that the easement had been abandoned and/or extinguished by way of adverse possession. Her complaint demanded that the bridge be removed and the effects of construction repaired. At trial, the Supreme Court directed a verdict in Di Cerbo's favor and dismissed the complaint. On appeal, the Appellate Division, Third Department, affirmed. The AD3 noted that while an easement may be abandoned, clear and convincing evidence must be proffered demonstrating “both an intention to abandon and also some overt act or failure to act which carries the implication that [the easement holder] neither claims nor retains any interest in the easement.” Mere disuse will not support such a claim. At trial, Majkut testified that she had continued to use the bridge as a pedestrian walkway even after the structure had been rendered unsafe for vehicular traffic. She testified decisively in Di Cerbo’s favor by indicating that she “never renounced or gave up her right to the easement.” An easement may be extinguished by adverse possession if the owner of the servient estate (in this case, Gold) disavows the easement and excludes the easement holder, who then acquiesces to the exclusion for at least a decade. Even though Gold demonstrated use of the easement for hikes, nature walks and cross-country skiing, and while her family also planted and mowed in its vicinity, those activities were neither inconsistent with the easement nor adverse to the easement holder. Significantly, there was no evidence that Gold had ever erected barriers or prevented the easement's use by others. As a result, Di Cerbo's rights to the easement could not be readily abridged. For a copy of the Appellate Division's decision, please use this link: Gold v. Di Cerbo
Our friends Upstate have been keeping us posted on their efforts to secure changes to the law of "adverse possession." And, it appears that they may have achieved some measure of success. Here's an e-mail I received last night from Aaron Robinson (who himself was the recipient of an unfavorable decision in an adverse possession case): Dear Mr. Ferrara, Just a quick note to let you know that both the New York State Senate and Assembly passed parallel bills to preclude a land claim by adverse possession when the claimant knows that another party owns the property. Based on the overwhelming support for this change (The Senate vote was 59 Yes / 2 No and the Assembly vote was unanimous!) it is obvious our lawmakers found the concept as appalling as did the victims. Denise Pryzbylo of the famed 'Walling v. Pryzbylo' New York State Court of Appeals decision headed the charge of lobbying the lawmakers for the change, together with myself and another potential adverse possession victim. We didn't get the comprehensive changes we initially sought but the change we did get is a matter of ethics and partially closes the door to those unscrupulous people preying on innocent legitimate unsuspecting tax paying landowners. We just need the Governor's signature to make it the 'law of the land.' Best Regards, Aaron Robinson
A quick look at the New York State Senate's bill suggests that it may not be the panacea property owners were hoping for. According to the proposed legislation, a person with "actual knowledge" that another holds "title" to property will be unable to assert an adverse possession claim to that parcel. Unfortunately, a key term -- "actual knowledge" -- is left undefined. That ambiguity leaves us cause for concern since there may be a distinction which our friends and legislators have overlooked. Courts may not view someone's "knowledge" or "general awareness" as comparable to having actual or constructive "notice" of another's property interest -- the latter being triggered by way of a publicly recorded document or deed. In our opinion, "actual knowledge" continues to leave the standard too subjective. And, if nothing else, would appear to encourage a blind indifference to the truth. (After all, unless the facts in the property dispute are conceded, who is to say whether a claimant had "actual knowledge" of another's ownership rights?) Is this a distinction with(out) a difference? We're not a(d)verse to hearing your reactions. ------------------------------ A copy of the Senate Bill (S05364) follows: 2007-2008 Regular Sessions
IN S E N A T E
April 25, 2007
___________
Introduced by Sen. LITTLE -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary -- reported
favorably from said committee, ordered to first and second report,
ordered to a third reading, 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 511 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 511. Adverse possession under written instrument or judgment. Where
5 the occupant or those under whom he OR SHE claims entered into the
6 possession of the premises under claim of title, exclusive of any other
7 right, founding the claim upon a written instrument, as being a convey-
8 ance of the premises in question, or upon the decree or judgment of a
9 competent court, and there has been a continued occupation and
10 possession of the premises included in the instrument, decree or judg-
11 ment, or of some part thereof, for ten years, under the same claim,
12 WITHOUT HAVING ACQUIRED ACTUAL KNOWLEDGE THAT SUCH CLAIM OF TITLE IS
13 INVALID OR VOID, the premises so included are deemed to have been held
14 adversely; except that when they consist of a tract divided into lots,
15 the possession of one lot is not deemed a possession of any other lot.
16 S 2. Section 521 of the real property actions and proceedings law, as
17 amended by chapter 116 of the laws of 1965, is amended to read as
18 follows:
19 S 521. Adverse possession under claim of title not written. Where
20 there has been an actual continued occupation of premises under a claim
21 of title, exclusive of any other right, but not founded upon a written
22 instrument or a judgment or decree, the premises so actually occupied
EXPLANATION--Matter in ITALICS (underscored) is new; matter in bracket { } is old law to be omitted.
LBD10687-05-7
S. 5364--A 2
1 FOR TEN YEARS, and no others, are deemed to have been held adversely,
2 EXCEPT TO THE EXTENT THAT THE CLAIMANT HAS ACQUIRED ACTUAL KNOWLEDGE
3 THAT ANOTHER PERSON IS THE TITLE OWNER.
4 S 3. This act shall take effect immediately and shall apply to
5 proceedings commenced on or after such date. ----------------------------- For our other blog posts on this topic, please use this link: Adverse Possession
 In a dispute arising from the use of a portion of private roadway located on C.R. Wallauer’s property, Lakeside Colony Condominium sought to “quiet title” pursuant to Real Property Actions and Proceedings Law Article 15. It was Lakeside’s contention that it become the owner of the roadway in question by way of "adverse possession" and it wanted a judge to resolve that issue.
After the Westchester County Supreme Court denied the parties’ request for summary judgment -- an adjudication of the dispute's merits based primarily on the parties' written submissions -- they appealed to the Appellate Division, Second Department. According to the AD2, Lakeside’s allegation of adverse possession should have been dismissed due to a 1986 agreement between the parties’ predecessors-in-interest, wherein a deeded easement over and through the disputed portion of private roadway was granted. That conveyance demonstrated that Lakeside’s use of the roadway was “expressly permissive” and therefore did not give rise to a supportable adverse possession claim. You won’t get any hostility from us about that outcome. For a copy of the Appellate Division's decision, please use this link: Lakeside Colony Condominium I v. C.R. Wallauer & Co., Inc. ------------------------------ For our other posts on this topic, please use this link: Adverse Possession
 Why are we seeing so many adverse-possession cases in New York County, of all places?
In 1804 Wash. Ave. Corp. v. Lindhe, tenant Peter Lindhe claimed an ownership entitlement to the rear year of a building owned by 1804 Washington Avenue Corp. In Lindhe's case, however, neither the New York County Civil Court nor the Appellate Term, First Department, was buying any of it. In the absence of the governing legal elements, Lindhe's adverse-possession claim couldn't withstand scrutiny. Here's how the AT1 put it: Appellant failed to establish adverse possession and/or prescriptive easement with respect to the rear yard of the building premises, there being no showing that his entry into or use of the outdoor area was hostile or under claim of right .... The record conclusively demonstrates that appellant's use of the rear yard was, at best, by license revocable at petitioner's will, and not through any tenancy interest.
After all, who wouldn't want something for nothing? For a copy of the Appellate Term's decision, please use this link: 1804 Wash. Ave. Corp. v. Lindhe -------------------------- For our other posts on this topic, please use this link: Adverse Possession
 In A-1 Realty Network of Homes, Inc. v. Kwang Ho Kim, A-1 negotiated an agreement on behalf of Mr. Kim (and others) where, for the sum of $1.1 million, two purchasers would buy the property in question, and A-1 would receive a brokerage commission in the amount of $50,000.
Although the deal closed, the commission was not paid. After litigation was started in the Suffolk County Supreme Court, that court was of the opinion that A-1 was entitled to its commission and awarded the broker a money judgment as against Ho Kim (and the other defendants) in the sum of $50,000. On appeal, the Appellate Division, Second Department, reversed finding that A-1 had failed to demonstrate an entitlement to relief. As the court observed: "To recover a commission, a broker must establish that he or she is duly licensed, that he or she has a contract, express or implied, with the party charged with paying the commission, and that he or she was the procuring cause of the sale or lease" .... A triable issue of fact exists as to whether the plaintiff was the procuring cause of the sale. The Supreme Court therefore erred in awarding the plaintiff summary judgment on its first cause of action against the appellants.
What is procuring cause? The answer to that question will vary, because a number of factors can influence the response.* But, typically, if the transaction wouldn't have consummated without the broker's efforts, then that individual will be viewed as the "procuring cause." And that’s no hokim! For a copy of the Appellate Division’s decision, please use this link: A-1 Realty Network of Homes, Inc. v. Kwang Ho Kim _______________________ *For a 17-page analysis distributed by the National Association of Realtors, please use the following lin | | |
