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Adverse Possession – How it Works in New York

adverse possession in New York

Adverse possession in New York is “the occupation of a person or entity of real property of another with or without knowledge of the other person’s superior ownership rights, in a manner that would give the owner a cause of action for ejectment.” Real Property Actions & Proceedings Law (RPAPL) § 501 (1).

So, if a person occupies someone else’s land, even if he knows it is not his land and it is someone else’s land, such person can acquire title over the property through adverse possession, for as long as the requirements for adverse possession are present.

Adverse possession in New York has to be:

  1. hostile and under a claim of right,
  2. actual,
  3. open and notorious,
  4. exclusive,
  5. continuous for the at least 10 years.

The 10-years time period is set forth in RPAPL § 501 (2) in relation to Civil Practice Law & Rules § 212. Hogan v. Kelly, 86 A.D.3d 590 (2011).

As previously mentioned, even if the adverse possessor knew that the property was not his land and it was someone else’s land, the adverse possessor can still have a “claim of right” which is a requirement for adverse possession to ripen into legal title.

Instances of Adverse Possession in New York

The principles of adverse possession in New York normally come into play in cases of adjoining properties. One might be cultivating or improving someone else’s land, thinking it is his, only to find out later after the neighbor has re-surveyed the property that such land being cultivated is his neighbor’s.

When the adverse possessor commits acts that are sufficiently open to put a reasonably diligent owner on notice or when the adverse possessor has put substantial enclosures upon the property, these acts, from the time they are committed, are considered adverse acts against the owner, and the counting of the 10-year period statute of limitations to acquire title to the land begins. RPAPL §§ 512 & 522.

Example

For example, John purchased Lot 1 and Michael purchased Lot 2 in 2000, both of which are adjoining properties. When they purchased it from previous owners, the lots were vacant with no separating fence. John was the first to build his house.

In 2001, John built a fence around his property of Lot 1, constructed a main house and a swimming pool, and near the fence, built another guest house just beside the swimming pool that served as an independent accessory dwelling unit in Lot 1.

In 2005, Michael saw the fence that John built, and simply followed it. He built his house and a swimming pool on the opposite side of the fence that John built. In 2020, Michael had his land surveyed. He then discovered that a substantial portion of the guest house that John built was actually on his land. The fence that John previously built was constructed using wrong boundaries.

Michael filed an action to quiet title, arguing that John did not have any claim of right because John knew that the property he fenced was not his.

In this case, the court would likely decide in favor of John. When John enclosed his property for at least 20 years, he publicly showed to everyone that the property was his, that he was holding it exclusively against all other persons, that he was possessing it openly and notoriously.

Because Michael did not do anything about it, John could be said to have gained title to the land through adverse possession.

Similar facts can be found in Walling v. Przybylo, 7 N.Y.3d 228 (2006).

Tacking

In determining adverse possession in New York, one does not just count his actual possession of the property. The adverse possessor can tack the possession of his predecessor-in-interest to his possession for purposes of counting the 10-year statutory period of limitation.

In the same example above, suppose that John, after building his house, swimming pool, and guest house in 2001, sold the property to Linda in 2008. Linda continued possession over the property. Michael surveyed his land in 2015 and found that the fence John built showed wrong boundaries and that a substantial portion of the guest house (which is now Linda’s) is in Michael’s land. He filed a case against Linda claiming that Linda did not acquire title to the property because she only occupied it for 7 years from 2008 to 2015.

Linda, in this case, can claim the rule on successive adverse possessions of property, and can tack the possession of John of 7 years to her possession of 7 years to form 14 years. Since Linda can be said to have possessed the property for 14 years by tacking John’s possession to hers, Linda has acquired the land by adverse possession.

In Brand v Prince, 35 N.Y.2d 634 (1974), the Court allowed the tacking of adverse possession even if the disputed portion of the land was not included in the deed. The Court held, “The rule is that successive adverse possessions of property omitted from a deed description, especially contiguous property, may be tacked if it appears that the adverse possessor intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed. (Belotti v. Bickhardt, 228 N.Y. 296, 303, 308, supra; Adverse Possession — Tacking, Ann., 17 ALR 2d 1128, 1131-1132; 3 American Law of Property, § 15.10.) Because the possessory title is entirely an incident of the adverse holder’s possession, transfer of that possession, even by parol, effects a transfer of the possessory interest. (3 American Law of Property, § 15.10.)”

Determining whether possession is continuous

A finding of adverse possession in New York can still be found even if the adverse possessor only stayed and possessed the property for a few months each year. In determining whether possession is continuous, the courts look into the adverse possessor’s acts of possessing the property and his exercise of dominion and control over the premises, whether or not he is physically present on the land, and whether these acts are consistent with acts of possession that ordinary owners of like properties would undertake. Ray v. Beacon Hudson Mountain Corp., et. al., 88 N.Y.2d 154 (1996).

For example, in the same example above of John and Michael, we assume the same facts that John built a house, swimming pool, and guest house, and the guest house encroached on Michael’s property. However, John for the past 20 years only lived in the house one month each year, because he spends most of his time in Florida. Michael filed an action to quiet title, claiming that John did not acquire title over the disputed land by adverse possession because John’s possession was not continuous, only staying in the property for one month for each year of the past 20 years. The court would not likely agree with Michael’s argument. In determining what constitutes “continuous”, the court looks into the adverse possessor’s acts of dominion and control that would indicate actual possession, such as over-all preservation of the premises, a permanent and substantial structure, constant repeated acts of repelling trespassers, and padlocking and securing the property during their absence, to name a few. These acts show dominion and control over the property, despite the adverse possessor’s physical absence.

De Minimis Possession

The good news for adjoining lot owners is that, since 2008, that statute now considers de minimis acts of possession as not adverse possession. De minimis acts are those stated in RPAPL § 543, such as the construction of fences, hedges, shrubbery, plantings, sheds, and non-structural walls.

In the same example of John and Michael above, assuming that instead of a guest house that serves as an independent accessory dwelling unit, what encroached upon Michael’s property was a simple tool shed with no foundation that was simply placed on the property and that John purchased from the local home depot store and assembled. Michael now files a claim for quieting of title, claiming John did not acquire the disputed portion by adverse possession because what was constructed was simply a de minimis non-structural encroachment. In this case, the court would likely find in Michael’s favor under RPAPL § 543.

If you have issues of adverse possession in New York, it is important that you immediately consult with a lawyer due to the strict statutory periods of limitation. Should you need assistance in the evaluation of your case, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.