Encroachment on Boundary Line, Adverse Possession and Easement

Encroachment on boundary lines naturally involve neighbors and frequently occur when there are no demarcation lines between the two property owners. Encroachment usually occurs when one property owner builds a structure on the property of a neighbor’s, thinking that such property is his. When the true property owner does not protest this encroachment for a particular period of time (usually 10 years, depending on state law), the property owner who built the encroaching structure may claim ownership over the land by adverse possession.

What is adverse possession?

In New York, RPAPL § 501 defines adverse possession by defining what is an adverse possessor, how title is acquired, and what is claim of right:

Ҥ 501. Adverse possession; defined. For the purposes of this article:

  1. Adverse possessor. A person or entity is an “adverse possessor” of real property when the person or entity occupies real property of another person or entity with or without knowledge of the other’s superior ownership rights, in a manner that would give the owner a cause of action for ejectment.
  1. Acquisition of title. An adverse possessor gains title to the occupied real property upon the expiration of the statute of limitations for an action to recover real property pursuant to subdivision (a) of section two hundred twelve of the civil practice law and rules, provided that the occupancy, as described in sections five hundred twelve and five hundred twenty-two of this article, has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual.
  1. Claim of right. A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be. Notwithstanding any other provision of this article, claim of right shall not be required if the owner or owners of

the real property throughout the statutory period cannot be ascertained in the records of the county clerk, or the register of the county, of the county where such real property is situated, and located by reasonable means.”

Adverse possession in layman’s terms

In layman’s terms, adverse possession occurs when one person acquires another person’s real property through the occupation of that other person’s real property within a particular period of time, openly, continuously, and notoriously under a claim of right, without protest from the true owner.

This has been explained in New York case law, by providing the five elements which must concur in order for one to acquire real property through adverse possession:

  • the possession must be hostile and under a claim of right;
  • possession is actual;
  • possession is open and notorious;
  • possession is exclusive; and
  • possession is continuous.

(Castle v. Schwartz, 63 A.D.2d 481, 490 (1978), citing Schoenfeld v Chapman, 200 Misc 444, 449; Doherty v Matsell, 119 N.Y. 646; Belotti v Bickhardt, 228 N.Y. 296, 302).

These five elements have to be present for a period of ten years under RPAPL § 501 in relation to CPLR 212.

What is open, notorious, continuous, and exclusive possession?

When a person wants to acquire title through adverse possession, his possession must be open and notorious, and not hidden to the public. The person must show acts of possession over the real property that is obvious to the public. These acts could include building structures, living in the structure, and acting like he is the owner of that structure to the public.

The possession must be continuous for ten years. Intermittent possession, such as being in possession of the real property for one year, absent for two years, and back for another year, is not considered continuous possession.

The possession must be exclusive and against the interest of the true owner. He must expressly exclude the true owner from possessing the property by claiming that such property is his. Possession that is made with toleration or permission of the owner is not exclusive possession that can ripen to ownership through adverse possession.

What is claim of right?

Lastly, the adverse possessor must possess the property under claim of right. His possession must be based on a reasonable belief that he is the property owner.

Encroachment ownership through adverse possession

Going back to the same example above, when one property owner builds on the property of the adjoining owner, this is called encroachment. This encroachment can ripen to ownership by adverse possession if the builder begins showing acts of possession over the property belonging to the other openly, notoriously, continuously, and exclusively, under claim of right, against the true owner.

In adjoining property owners, this usually happens when there are no demarcation lines between the two properties. One property owner might build on the property of another on the reasonable belief that he is building on his own property. If this possession continues for ten years, such occupation can ripen into ownership, unless the true owner commits acts which can break the cycle.

Solution against encroachment ownership through adverse possession

If you are the true owner, how can you break this type of adverse possession, while continuing to maintain friendly relations with your neighbor? Make sure you get the potential adverse possessor to admit that he is possessing the property with your permission.

How? Documentary evidence is always preferred, so if you can begin email correspondence with the potential adverse possessor, getting him to admit that he knows he does not own the land and that his possession is based on your express permission, his possession can never ripen into ownership, even if such possession extends to more than 10 years.

De minimis ownership

In New York, de minimis acts of ownership do not constitute adverse possession. What are these de minimis acts? These are non-structural acts and occupations such as planting shrubbery in the land of another or constructing non-structural sheds and fences. These de minimis acts of possession can never ripen into ownership.

Adverse possession in easements

Adverse possession can also occur in easements. An easement is a nonpossessory real right given to another property (called the dominant estate) to use another property (called the servient estate) for a particular use. The right is given to the land, and not to the owner – that is why it is considered a real right. An easement survives the change of owners.

The most common easement in New York (aside from utility easements) is for right of way, such as a driveway easement. These easements are usually annotated in the servient estate’s deed. The servient estate is the property that has been burdened by the easement.

For example, a property owner owns land that is subjected to a driveway easement for the benefit of another. The land burdened with the driveway easement is the servient estate. Even if the servient or dominant estate changes owners, the driveway easement will still exist. The easement right flows with the land and not with the owner.

So if you own land subjected to an easement, you must respect the other owner’s right to use the easement. Remember, however, that the other person’s right to use your land is limited to the use described in the easement agreement. A driveway easement does not allow the other property owner to use your land for planting. That property owner’s use of your land should be restricted and limited to the use provided in the easement. Otherwise, it can be considered trespassing.

Extinguishment of an easement through adverse possession

Adverse possession, however, can extinguish an easement. The same elements for acquiring real property through adverse possession need to be present when extinguishing an easement through adverse possession:

  • the possession must be hostile and under a claim of right;
  • possession is actual;
  • possession is open and notorious;
  • possession is exclusive; and
  • possession is continuous.

(Castle v. Schwartz, 63 A.D.2d 481, 490 (1978), citing Schoenfeld v Chapman, 200 Misc 444, 449; Doherty v Matsell, 119 N.Y. 646; Belotti v Bickhardt, 228 N.Y. 296, 302).

How adverse possession applies in easement

If your property is burdened with an easement, for example, a driveway easement, you can build a structure (such as a wall) that blocks the owner of the dominant estate from using the easement. If this possession of the easement is hostile, under claim of right, actual, open, notorious, exclusive, and continuous for 10 years, you can extinguish the dominant estate’s right to the easement. The structure, however, must not have been built with permission from the dominant estate owner. Otherwise, it cannot ripen into extinguishment by adverse possession.

You may, however, need a judicial order, declaring that the dominant estate’s right to the easement has been extinguished.

Adverse possession can also occur among joint tenants (co-owners), or even a tenant. Although the same elements apply, some nuances in the law must also be observed, depending on the unique circumstances of the case.

Encroachment and adverse possession can be a complex matter among real property owners. It is important to seek the advice of legal counsel before embarking on any course of action, because some acts may lead to payment of damages. Should you need assistance, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001
[email protected]