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