How Does the Adverse Possessor Take My Land?

An adverse possessor gains title to the land if the occupancy “has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual” and extended over 10 years.[1]

1. Claim of Right

“Claim of right” is defined since 2008 as “a reasonable basis for the belief that the property belongs to the adverse possessor.” [2] In other words, the adverse possessor must actually believe – or convincingly claim to believe – that he has a legal right to the land that he wrongfully occupies.[3] This requirement has been fulfilled by, for example, misreading or being unable to read the property survey.[4] It can be proven by affidavit.[5] For example, if a land owner objects only to the height of a wall that has been impermissibly put on his land, cutting him off from accessing the part that is being adversely possessed, rather than its location, that would provide the adverse possessor with a reasonable basis for believing that the part of the land was his.[6]

2. Open and Notorious

Open and notorious is somewhat similar in meaning to “obvious.” The occupation should be noticeable, visible. A hidden, underground drain or conduit will not be open and notorious, and will not allow the adverse possessor to gain title.[7] This requirement is further explained below.

3. Exclusive

Absolute exclusion is not always required. Whether possession was exclusive is determined in light of the nature of the land, its uses, and the purposes for which it is naturally adapted.[8] Possession only needs to be of the type that would characterize an owner’s use of the kind of property in question.[9] Occasional use by others that does not interfere with the possessor’s activities does not defeat exclusivity.[10]

Exclusivity requires that during the 10-year period, the adverse possessor cannot acknowledge that the land is owned by another – doing so destroys the claim of right and adversity.[11]

4. Continuous and Actual

Continuous: The adverse possession must continue for an unbroken period of at least 10 years. If the owner takes back possession of the property for any time during that time, possession by the adverse possessor will not be continuous.

However, if the land by its nature has a seasonal or time-limited use (i.e. if it is too cold or wet to use during certain seasons) then these requirements will not be broken.[12] In other words, actions consistent with the ordinary use of the property are usually adverse. If the use is seasonal, occasional, or recreational, that will be sufficient if it is consistent with the nature of the land.[13]

Proof of actual possession is subsumed under the requirements of RPAPL § 522, below. If there were “acts sufficiently open to put a reasonably diligent owner on notice” or the adversely possessed land was “protected by a substantial enclosure,” an adverse possessor might meet the burden of actuality.[14]

5. Adversity

Possession is adverse when it constitutes an actual invasion of or infringement upon the owner’s rights. A claim of right is by definition adverse to the owner and also in opposition to the rights of the true owner. Courts will infer hostility from the existence of the other four elements.[15] This requirement is something of a catch-all, or an additional definition of the adverse possession concept.

For possession to be hostile it must be without permission and non-consensual.[16] Seeking permission, but little else, would negate hostility.[17] There is a presumption of hostility if use is open, notorious, and continuous for the required time.[18]

6. Continuous for 10 Years

The occupation must be for ten years, though the person who started the adverse possession does not have to be the same person that completes it at the end of 10 years.[19] At the end of the ten years, the adverse possession will ripen into full ownership. It is worth noting that legal title is transferred at that point by passage of time – the adverse possessor does not have to do anything else after the expiration of the ten years. He may commence an action for a declaration and have the deeds amended, but the title itself is transferred by function of the expiration of time, not by any legal action.[20] The original owner’s access and use of the property thereafter may constitute trespass.[21]

Continuous possession need not be constant; it is satisfied with repeated acts that are consistent with the acts of possession of an owner of such a property.[22] When an adverse possessor is in possession for less than the required time, they may tack on a predecessor’s adverse possession to their own to satisfy the statutory period, provided the disputed part of the land was part of the contract of sale with the new owner.[23]

In addition, as outlined below, minor encroachments on the land for six inches or less over the property may ripen into adverse possession in as little as one year.

Landowner Takeaway:

Make a thorough physical inspection of your land at least every 8-9 years. Compare what you find to what your property records say; if you never had an official survey done, you may want to consider it. Know where your property boundaries are. Check your boundaries yearly and check for minor encroachments of six inches or less. Look out for adverse possession during the times of year when you would expect the land to be used. A townhouse’s usual use will be different to that of arable land. Check if there is anywhere that you cannot access when you should be able to. As soon as you suspect someone infringing on your land, make sure to tell them that they are on your land. Send them a letter (return receipt) or an email; this way they will later have a difficult time arguing that they thought they had a right to the occupation.

[1] RPAPL § 501(2)[2] However, if the occupation is sufficiently “hostile” under the other requirements, a court will infer claim of right. Merget v Westbury Props., LLC, 65 AD3d 1102 (2d Dept 2009). In the words of New York’s highest court, “Conduct will prevail over knowledge…” (Walling v Przybylo, 7 NY3d 228, 232 (2006)).

[3] RPAPL § 501(3), Matter of Lee, 96 AD3d 941, 942 (2d Dept 2012)

[4] Slacer v Kearney, 151 AD3d 1602, 1604 (4th Dept 2017)

[5] Matter of Lee, 96 AD3d 941 (2d Dept 2012)

[6] Marone v Kally, 109 A.D.3d 880 (2d Dep’t 2013).

[7] Top of Form La Licata v Sands Point, 12 Misc 2d 1008 (Sup Ct, Nassau County 1958) Bottom of Form

[8] Board of Managers of Soho Intern. Arts Condominium v. City of New York, 2005 U.S. Dist. LEXIS 9139, 2005 WL 1153752 (S.D.N.Y 2005)

[9] 3 AM. JUR. 2D Adverse Possession § 68 (2011)

[10] Robinson v Robinson, 34 AD3d 975, 977 (3d Dept 2006)

[11] Merget v Westbury Props., LLC, 65 AD3d 1102 (2d Dept 2009)

[12] Ray v Beacon Hudson Mt. Corp., 88 NY2d 154, 159 (1996) (“…the requirement of continuous possession is satisfied when the adverse claimant’s acts of possessing the property, including periods during which the claimant exercises dominion and control over the premises or is physically present on the land, are consistent with acts of possession that ordinary owners of like properties would undertake.”)

[13] Robinson v Robinson, 34 AD3d 975 (3d Dept 2006)

[14] Birnbaum v Brody, 156 AD2d 408 (2d Dept 1989)

[15] United Pickle Prods. Corp. v Prayer Temple Community Church, 43 AD3d 307 (1st Dept 2007)

[16] Goldschmidt v. Ford Street, LLC, 58 A.D.3d 803 (2d Dep’t 2009) (holding that consensual use of disputed area defeats hostile element of plaintiff’s claim)

[17] United Pickle Products Corp. v. Prayer Temple Community Church, 43 A.D.3d 307 (1st Dep’t 2007).

[18] Sinicropi v. Town of Indian Lake, 148 A.D.2d 799 (3d Dep’t 1989)

[19] Hodges v Beattie, 68 AD3d 1597, 1599 (3d Dept 2009)

[20] Slacer v Kearney, 151 AD3d 1602, 1603 (4th Dept 2017)

[21] West v Hogan, 88 A.D.3d 1247 (4th Dep’t 2011), aff’d, 19 N.Y.3d 1073 (2012)

[22] Robinson v Robinson, 34 AD3d 975 (3d Dept 2006)

[23] Talmage v Trust, 871 F Supp 1577 (EDNY 1994); Rasmussen v. Sgritta, 33 A.D.2d 843 (3d Dep’t 1969); Munroe v Cheyenne Realty, LLC, 131 AD3d 1141 (2d Dep’t 2015); Brand v Prince, 35 NY2d 634, 637 (1974).

ABOUT THEODOR BRUENING

tbruening@offitkurman.com | 212.380.4111

Theo is a business attorney and litigator whose work covers all aspects of national and international litigation and arbitration. His practice is dispute resolution in construction, architectural, employment, and commercial cases on the local, national, and international level covering issues such as fraud, breach of fiduciary duty, contract rights, defamation, discrimination, unjust enrichment, and negligence. He represents architects, design professionals, executives, entrepreneurs, and their businesses.

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