Posted by: Patricia Salkin | July 11, 2008

New York Enacts Changes to Adverse Possession Law to Require Claim of Right

Following a 2007 veto of S.5364-A/A.9156  (veto #153)by Governor Spitzer, this week Governor David Patterson signed S.7915-C/A.11574-A changing the statutory standard for adverse possession in New York.  According to the Sponsor’s Memorandum in support of the bill (Senator Elizabeth O’C. Little), the Legislation was offered in reaction to recent case law on adverse possession by the New York Court of Appeals (Walling v. Przvbvlo, 7N.Y.3d 228 (2006)) and an appellate court (Robinson v Robinson, 34 AD.3d 975, 825 N.Y.S.2d 277(3d dept – 2006).

 

According to Senator Little’s memorandum, “This legislation is all about good faith. 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.  However, if they have a reasonable basis to believe that it is their land then that is exactly the good faith dispute over title to real property for which the adverse possession doctrine was established. 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.  That only encourages mischief between neighbors and even between families. No good can come of it. This is an incentive which must be curtailed.

 

In Walling v. Przybyklo, 7 N.Y. 3d228 (2006), the Court of Appeals stated that in adverse possession claims “conduct will prevail over knowledge” and that adverse possession will defeat a deed even if the adverse possessor has knowledge of the deed. This decision is at odds with contrary case law which held that adverse possession is only available if the claimant enters into the possession of the premises under a claim of title. Last year the Executive vetoed a different attempt to resolve this issue. The Executive took issue with the introduction of a person’s belief into the elements of adverse possession. This bill will focus the inquiry not upon the person’s belief, but instead upon the evidence introduced in court which justifies a reasonable basis for that belief. It will be an inquiry into the basis and whether it was reasonable, not into a person’s mind. The court will determine whether or not there was a reasonable basis.

 

This legislation addresses the holding in Przybylo and Robinson to provide that an adverse possessor can only acquire title if their occupancy exists under a “claim of right”, in addition to an adverse, open and notorious, continuous, exclusive and actual occupancy. A “claim of right” is defined as a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be. This will focus the court’s inquiry not on a person’s belief, but upon whether or not there was a reasonable basis for it. A doctrine which permits an offensive adverse possessor who lacks a reasonable basis to believe that it is their property only encourages an attempt at adverse possession. It is not an attempt to resolve a good faith dispute to title.”

 

To view a copy of the legislation, see: http://assembly.state.ny.us/leg/?bn=S07915&sh=t


Responses

  1. I own approximately 5 acres of land. Most of it is wooded. Some tome ago my neighbor who owns a kennel built two dog houses that are each about 10″x20′ . I never noticed the construction because they are behind the wood line. Like most people, I never new a law existed that allowed one person to take the property of another. Iwould like to know what my rights are.

    Thank you.

  2. My property is approx. one acre of land. An adjacent neighbor has started mowing into my property, despite my asking him not to, and has most recently planted several trees on my property (per the survey map from when I bought the property in 2005). In other words, one day the trees were not there, the next day they are there and planted. According to the new law signed by Gov. Paterson, I believe his planting of the trees and incidental mowing does not automatically grant him possession of that portion of my property; am I correct? If not, what should be my next legal step? If I do nothing, does the neighbor gain possession of the property after a number of years?

    • Don’t know about the trees, but one can mow along both sides of a fence without trespassing, so I’m betting a lawyer would tell you that doing that does not give you squatter’s rights.

  3. S.7915-C/A.11574-A, signed Governor Paterson, now requires that the claimant (your neighbor) must have a “claim of right” or “reasonable basis for the belief” that the property is theirs to take adverse possession. Your neighbor can not take adverse possession of property regardless of how long he squats on it. He has to have proof that he has a right to the property in question (i.e. a dispute over property lines). Amen to Gov. Paterson.

  4. Finally! It does not seem right that someone could sneak onto another’s property and earn title to that property. The prior adverse possession laws seemed to encourage the clandestine taking of property.

    This legislation is appropriate, it maintains the possibility of adverse possession, but limits the ability to possess another’s property to those with a “claim of right.”

  5. I’m looking at buying a lake property in Saratoga County in New York State. The property has a 10′ lake permit on the Sacandaga Lake. There’s a 25′ wide parcel from the road to the take line of the permit, that is owned by an adjacent landowner. There’s nothing in the house deed, that I’d like to purchase, that states I’d have the right of way to my 10′ lake permit. This right of way to the lake permit has been used for the past 40+ years by the current homeowners and they’ve never been stopped from using it. What rights do I have as far as adverse possession law to continue to use this right of way if I purchase the home and the permit to the lake?

  6. I was subject to adverse possession in Steamboat Springs CO. The land was adjoining our land and had never been platted. My position is that it should have been divided between the adjoining neighbors. I never ever saw my neighbors on the property. Kevin Bennett did an adverse possession action and I was not even notified. Of course he was on the city council. It was a small parcel but even a strip of it would have greatly increased the value of our property.

    • Kay Sieverding, you can dispute your neighbor’s adverse possession action on the basis that you were not served with proper notice of the legal action to take adverse possession. You neighbor would have to show that you were properly served notice of the action and had a chance to dispute it.

  7. I bought my house from the City of Buffalo last year. Next to our property, and cutting into our property line, is a vacant lot. This lot is City owned.

    We live fifty feet from the Homestead cut off line, so we are unable to homestead the land. We have been maintaining this lot, mowing, raking, picking up trash, for over a year. The city does not maintain it.

    How do we go about claiming adverse possession? Would it help to have an attorney? Any advice would be wonderful.

    • I’m not a lawyer, but in most states, a private person can not take land from a government by adverse possession and in no state can a government take private land by adverse possession.

  8. Hello..I purchased a 120-year-old house in 2008 in the city of Glens Falls…there is a fence separating my property from a duplex that is rented to two separate tenants…one I will refer to as the good tenant..the other as the bad tenant…the bad tenant is a section 8 tenant who sometimes parties late at night or can be heard screaming at her small children as early as 5am. The police have responded to 911 calls…the tenants have thrown trash on my property….the code enforcement officer has been called a couple of times as well…the owner of the duplex is a real estate agent who initially appeared to be receptive to my complaints …(a total of 6 calls placed to the landlord over the last 3 years regarding complaints..2 of which were on behalf of the good tenant..who has to get up very early in the am for her job)…I am frustrated by the bad tenants irresponsible behavior and I phoned the landlord/real estate agent a few weeks ago and mentioned that the fence separating the property had been damaged by both the bad tenant and people visiting the bad tenant and that i was documenting the damage…I was told by the previous owner of my home when I purchased my home in 2008 that the fence had been erected by said previous owner and that the fence is on my property…the fence has been in existence since at least the mid 1970s per the previous owner of my home…..the previous owner had issues with the tenants renting the duplex as well……the landlord-real estate agent of the duplex had issue that I had the nerve to place a PRIVATE PROPERTY…NO TRESPASSING SIGN on the fence..(i did this because the bad tenant’s small children were playing on my property and I felt it was dangerous as a homeowner for the children to be playing on my property…It does no good to address the problems with the bad tenant herself, as one is generally met with four-letter explicatives of which said tenant seems to be very fond of and limited to..The landlord-real estate agent of the duplex is having a survey done…if the fence is on their property, what sort of recourse do i have…again, the fence has been there since the mid-1970s…….the landlord/real estate agent has already phoned me to say that if my fence is on their property I will have to have it removed….this landlord/real estate agent of the duplex has never had an issue with the fence until i placed the signs on the fence and told her that i was documenting the damage to the fence….again, I purchased this home in 2008……just as a sidenote, three additional neighbors in my immediate area..including the other tenant of said duplex..have filed complaints with the city…and child protective services complaining about this bad tenant……I have tried to settle this peacefully..but I am getting frustrated as the rights of the section 8 tenant who does not work and acts irresponsibly appear to outweigh the needs for a peaceful existence for hard-working folks in the neighborhood….I am guessing that the landlord/real estate agent who owns this duplex and rents to these people who are causing issues does not wish to evict them because of the money she receives from social services??…The city building and codes office lists a point system which indicates that so many offensive points that are accumulated from a nuisance tenant should result in their being evicted…..I was told by the landlord/real estate agent that I have complained about every tenant that has occupied that apartment…and she is right, I have…but not without reason..This is the third tenant since 2008..(since Ive been in the neighborhood)…the previous two tenants had complaints against them primarily for dumping garbage on my property..These previous two tenants both left their apartments in such disrepair when they left, either in the middle of the night..or to find another apartment..that each time..they cost this landlord/real estate agent “several thousands of dollars to repair” per information relayed from said landlord/real estate agent to me prior to this latest dispute…when I recently pointed this information out to said landlord/real estate agent…i did so to remind them that perhaps my prior complaints had been warranted due to the amount of damage control they had to contend with when these tenants left..anyway, now that I have basically typed what amounts to a novelette…..again, I ask..does anyone know what sort of recourse I have regarding the fence issue……..Incidentally, I have nothing against section 8 folks who are responsible and respectful…my mom needed help when she was a young parent some 48 plus years ago and received it from the Salvation Army…..and..I have resorted to placing a security camera on my property that looks at my property for protection….oy and vey!

  9. i have uesd and ocuppied a paper road which the highway dept says the town doesn’t owen because it wasn’t detecatied. been on it for over 18 yrs and wish to owen it how can i do this???


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