If You Snooze It Is Harder to Lose: Property Boundary Disputes and the Evolution of the Doctrine of Adverse Possession in New York

Posted in Community Associations

The doctrine of adverse possession has a long history in New York as a means of resolving property boundary disputes between neighbors:  If a person were to build a structure on someone else’s property and no complaints are made for ten years, the property becomes theirs.  The original rationale behind this doctrine was to protect a landowner who mistakenly made improvements, which extended onto his neighbor’s property, from claims by his neighbor regarding the ownership of the encroachment area many years after the encroachment occurred.

Over the years, a large body of adverse possession case law developed in New York, which helped flesh out the sparsely worded statutory requirements of an adverse possession claim.  As the case law developed, the doctrine of adverse possession started to be used more frequently as a sword to help owners acquire their neighbors’ property rather than being used as a shield to protect owners from stale encroachment claims as was originally intended.  In July 2008, the New York State legislature revised the statute governing adverse possession by adding some of the elements of adverse possession created by case law and specifically excluding other aspects of the case law.  These revisions were made in order codify the case law and to prevent adverse possession claims made in bad faith.

Adverse Possession Alive and Well in the Suburbs and Cities

Property law professors in New York cover the legal concept of adverse possession during the first year of law school, and adverse possession used to be a topic that appeared occasionally on the New York State Bar Exam.  The cases discussed in educational settings mostly involve boundary disputes in rural areas where landowners, often owning many acres, understandably may not notice that a structure was built on the property and therefore would not take appropriate action to have the structure removed.  Even though most lawyers are vaguely familiar with the concept of adverse possession from their law school days, many remember it as an arcane doctrine that is only relevant to lawyers who practice in rural counties.

The doctrine of adverse possession is invoked frequently in real estate litigation, not only in rural areas but also in suburban and urban areas settings where there is high building density and population density.  Instead of fighting over who owns woods and fields, these property boundary disputes typically involve the use of shared driveways or alleyways between two houses or buildings, or arise when one neighbor decides to erect a fence along a property line.  Although the size of these areas may be relatively small, the value of this suburban or urban real estate can be quite large, resulting in bitter disputes between neighbors.

The Elements of Adverse Possession

Regardless of whether property is located in the country, a suburb or a city, the law in New York governing adverse possession is the same, and is contained in Article 5 of the New York Real Property Actions and Proceedings Law (the "RPAPL 5").  Although not spelled out explicitly in RPAPL prior to the July 2008 revisions, the case law interpretations of the statute held that in order to succeed on an adverse possession claim, the adverse possessor had to demonstrate that his possession was

  1. under claim of right;
  2. hostile;   
  3. actual;
  4. open and notorious;
  5. exclusive; and
  6. continuous.

The actions required to be taken by an adverse possessor to satisfy any one of these elements will typically satisfy several others as well.  Basically, if you openly and exclusively occupy someone else’s property for ten years, all of these elements, except for the claim of right, are satisfied.  Historically, an adverse possessor satisfied these elements by enclosing the land in question with a fence, building a structure on it, or cultivating it, if it was farmland.

The Claim of Right Controversy

The element of adverse possession that has received the most attention from courts and the legislature in New York during recent years is the element known as a claim of right.  A claim of right is the adverse possessor’s basis for claiming an ownership interest and possessing land not actually belonging to her.  Prior to 2006, the rulings by New York courts on the issue of whether an adverse possessor’s knowledge that someone else owned the land they sought to take was relevant to establishing a claim of right were inconsistent.  This inconsistency encouraged litigation because without a firmly established case law precedent, plaintiffs and defendants both felt they could win challenges concerning a claim of right on any given day.

Finally, in the landmark 2006 case of Walling v. Przybylo, 7 N.Y. 3d 228. 2006., the highest appellate court in New York, the Court of Appeals resolved the claim of right controversy and held that actual occupation, not subjective knowledge, determines whether the claim of right element of an adverse possession claim is satisfied.  In other words, if you act like you are the owner of the property, you have established a claim of right even if you knew you were not the owner of the property when you took possession of it. 

Although many legal scholars and real estate lawyers viewed the Walling decision as unjust because it seemed to reward people who took possession of and erected structures on property they knew they did not own, the law concerning a claim of right was finally settled in New York.  Unsurprisingly, the case law precedent set by the Court of Appeals in the Walling decision did not last long.

2008 Amendment of Article 5 of the New York Real Property Actions and Proceedings Law 

On July 7, 2008, two years and five days after the Walling decision by the Court of Appeals, the New York State Legislature amended RPAPL 5 in order to overturn the precedent set by Walling.  In her memo in support of the amendment, Senator Elizabeth Little stated that “A person who attempts to possess land that they know all too well does not belong to them should not be encouraged.  If a person desires land, they can buy it. … Adverse possession should be used to settle good faith disputes over who owns land.  It should not be a doctrine which can be used offensively to deprive a landowner of their real property.” (New York State Senate Introducer’s Memorandum in Support S7915-C.)

The 2008 amendment to RPAPL 5 attempts to eliminate bad faith adverse possession claims by using a reasonableness standard to determine whether a claim of right has been established.  The statute now defines a claim of right as “a reasonable basis for the belief that the property belongs to the adverse possessor.”  (New York Real Property Actions and Proceedings Law Section 501.) In other words, if you know or should know you are occupying someone else’s land, you cannot establish a claim of right.  Occupation is no longer determinative to establishing a claim of right.

In addition, the amendment codifies the other elements of adverse possession previously only established by case law as follows: “adverse, open and notorious, continuous, exclusive, and actual.” (Id.)  The amendment also makes it more difficult to demonstrate these elements by specifically stating that “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.”  (New York Real Property Actions and Proceedings Law Section 543.) This is a significant departure from the standard set by prior case law wherein fences often served as the cornerstone of adverse possession claims.  

Conclusion

The doctrine of adverse possession has played a vital role in property boundary disputes in the countryside, suburbs and cities of New York for a long time.  The July 2008 amendment to RPAPL 5 codified the elements of adverse possession established by many years of case law, but also made a significant departure from the case law by establishing a reasonableness standard for the claim of right element.  The amendment also made it more difficult to establish an adverse possession claim by specifically excluding fences and other non-structural encroachments from comprising part of the basis for an adverse possession claim.  As a result of the amendment, a property owner in New York who sleeps on his rights by failing to action to remove encroachments on his property has a better chance now of defeating an adverse possession claim than at any previous time in history.  Nonetheless, it is still possible to acquire property through adverse possession, so an owner who believes that his neighbor is encroaching on his property should promptly consult with an attorney in order to take measures, which will nullify any potential adverse possession claim.  Similarly, an owner who believes that he may have acquired his neighbor’s property by adverse possession should consult with an attorney in or to determine whether his claim is viable, and if any further steps should be taken to strengthen the claim.