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In a city where the value of every square inch of land seems to increase with each passing day, a growing number of New Yorkers are being forced to fight for land that is rightfully, (or wrongfully), theirs. Believe it or not, these battles include claims of title by adverse possession ... even in the county of Manhattan.

As we have observed in prior blog posts, to prevail on an adverse possession claim, the party seeking title to another's property must demonstrate, by clear and convincing evidence, that possession was "hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period of ten years."
In Keena v. Hudmor Corp., the plaintiffs -- owners of two adjacent and contiguous pieces of property in New York City's prestigious West Village -- acquired the parcels, known as 449 and 449½ Hudson St., back in 2000 and 1997. They alleged that along the rear of the property the prior owners had been using and occupying a strip of land which actually belonged to a next door neighbor and continued to use that parcel even after the defendant became the owner of that adjoining property.

Supposedly, throughout the entire time the prior owners held title, a fence enclosing the disputed strip of land was in place and the only means of access to that area was by way of plaintiffs' property. Plaintiffs allegedly controlled and improved the disputed parcel without challenge from the rightful owner. And, in affidavits submitted to the New York County Supreme Court, the prior owners contended that their use of the disputed area was "adverse, open, notorious, exclusive and uninterrupted." Yet, despite these statements, the court did not believe that an adverse possession claim had been triggered and summary judgment was awarded in the defendant's favor.

Although plaintiffs utilized the disputed parcel as a place for lawn furniture, a barbeque, hot tub, and wood deck with fencing, that was not sufficient to trigger an adverse possession. According to the Supreme Court, plaintiffs would have needed to have paid taxes on the land or have undertaken some affirmative act, like erecting a fence, rather than simply adding a lattice onto an existing one.

Interestingly, the Appellate Division, First Department, reversed and reinstated the case due to unresolved "questions of fact."

While the lower court focused on who had paid taxes on the disputed parcel, the AD1 was of the opinion that the court should have considered "how the property was used, whether the prior owners did enter upon the premises under a claim of right, rightfully or wrongfully, and whether they intended to convey the disputed parcel to the plaintiffs."

The AD noted that without a "claim of right," the mere use and occupancy of property for an extended period of time, is insufficient to trigger ownership by adverse possession. And, currently, there is no requirement that the adverse possessor pay property taxes in order to qualify for ownership under this doctrine.

Shouldn't parties claiming an ownership entitlement to property demonstrate that they paid taxes for that which is supposedly theirs?  (We think so.)

Where and how these particular lines will be drawn, must now await a formal hearing or trial.

For a copy of the Appellate Division's decision, please use this link: Keena v. Hudmor Corp.   

For our other blog posts on this topic, please use this link:  Adverse Possession