The doctrine of adverse possession--staking a claim of right to property owned by another--although originally rooted in common law, is also grounded in New York State's statutes [N.Y. Real Property Actions and Proceedings Law, Article 5]. If the governing elements can be established to a Court's satisfaction, it remains one of the few legitimate ways one can acquire ownership of another's real property for "free." Of course, rather then mend fences, the doctrine's application often serves to drive a wedge between adjoining property owners and continues to be the source of contentious litigation.
In the Matter of Patricia Reed Perry v. Young Israel of New Rochelle, the Appellate Division, Second Department, reviewed an adverse-possession claim made by the Synagogue against the owner of an adjacent private cemetery. After examining the governing elements, the appellate court concluded that no bonafide basis for relief had been asserted and noted in its decision as follows:
'A party seeking to obtain title by adverse possession must establish that the property was either "usually cultivated or improved," or "protected by a substantial enclosure" for the 10-year statutory period (see RPAPL 522 , ). In addition, as required by common law, the party must demonstrate, by clear and convincing evidence, that the possession of the parcel was hostile, under a claim of right, actual, open, notorious, exclusive, and continuous for the statutory period'...If any of these elements is lacking, the alleged possession will not effect a change in legal title...In this proceeding, Young Israel failed to establish that it cultivated or improved the real property...or that it enclosed the real property in order to exercise exclusive dominion over it...In addition, it failed to establish that its alleged use and possession of the real property was, inter alia, hostile to the petitioner's interests..., exclusive..., or accomplished under a claim of right....Certainly, Perry reinforces that the proponent of an adverse-possession claim bears the burden of proof and that courts will subject the arguments made by young and old alike to exacting scrutiny.
For a copy of the Appellate Division's decision In the Matter of Patricia Reed Perry v. Young Israel of New Rochelle, please click on the following link:
[Note: Additional analysis on adverse possession may be found in the June 2006 edition of our firm's newsletter. To access that issue, please click on the following link: http://www.finkelsteinnewman.com/June2006Newsletter.pdf ]