This is part four of a four-part series. Read parts one, two, and three.
De Minimis Adverse Possession
It might happen that your friendly neighbor plants shrubbery that extends on your land, or maybe a dry wall. On the one hand, you want to make sure that you don’t lose title to your land. On the other hand, you like your neighbor, and the shrubbery or the drywall actually look very nice. Luckily, your neighbor is not adversely possessing your land. Adverse possession that is “de minimis” does not qualify for adverse possession.[1] “De minimis” acts and occupations include “non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls…”
For an encroachment to be structural – and therefore qualify for adverse possession – it must be “part of a structure [or] provide support to something else.”[2] The construction of a tree house or an above ground swimming pool are not de minimis[3] while a rock wall that supports nothing else is de minimis. [4]
Adverse Possession Within One Year
As stated above, adverse possession generally takes ten years to take effect. However, walls encroaching over the property line by six inches or less, if the wall is part of a building, will accrue adverse possession much faster.[5] This also applies to overhanging eaves.[6]
Within the first year after construction, the landowner onto whose land the adverse possessor has built the offending wall can ask and sue to have the offending wall removed.
If an action for damages is brought within two years of the construction, upon payment of the damages, the owner of the structure gets title to the strip of land that the wall occupies.[7]
After two years, the owner of the offending structure will get an easement to have the wall in the place. An easement is a right over land; in short, the adverse possessor is legally allowed to have the wall in place, but he does not get title to the land it stands upon.[8]
Clear and Convincing Evidence
There is good news for land owners. Not only are the requirements for adverse possession numerous (as outlined above), but in order to get title through adverse possession, it must also be proven by “clear and convincing” evidence.[9] This standard is higher than the usual civil “preponderance of the evidence” standard. The fact finder must be satisfied that the evidence presented by the proponent of the position “makes it highly probable that what (he, she) claims is what actually happened.”[10]
What Can Land Owners Do to Protect Themselves?
1. Be Vigilant
The basic takeaway is this: Keep an eye out. A land owner should make sure he knows where the exact boundaries of his property are. Make sure nothing extends over your property lines that is not yours. Hire a surveyor if you are in doubt. Survey your land frequently and carefully. Confirm that you can access everything you should be able to.
2. Give Permission
In addition, an easy and counter-intuitive way to stop adverse possession is a surprisingly friendly strategy: Give the adverse possessor your permission to use the land when he or she asks for it.[11] That is because asking for permission implies that the occupier recognizes that he or she has no legal right to be where he or she is. Therefore, they are not occupying the land under a “claim of right” and cannot be adverse possessors.[12] This is a great way to keep the peace with your neighbor whose tool shed is halfway on your lawn and that you otherwise get along great with. Ask your neighbor to sign an agreement whereby he can use your land for certain activities and at certain times; in exchange he should pay you a nominal amount, such as one dollar per year.
Similarly, requesting permission to occupy the property will negate the hostility and adversarial requirements[13] and the notice requirements.[14] Making a request to purchase the occupied property during the ten-year vesting period will destroy hostility.[15] Therefore, invite a discussion – preferably by letters or email – in which the neighbor may ask for permission to use or buy your land. Even if you do not give the permission, the effect is the same – the simple fact that they asked for permission shows that they recognized your right to the land.
Q&A
1. What About Tenants that Stop Paying?
Tenants are dealt with in RPAPL § 531 and 541. Per RPAPL § 531, where there was a landlord-tenant relationship, any possession of land by the tenant is deemed the possession of the landlord for ten years after the tenancy ended, and where there was no written lease, ten years after the last payment of rent.[16] In other words, a tenant will take ten years to become an adverse possessor; the entire adverse possession process will take twenty years. A tenant at will cannot acquire by adverse possession against his landlord.[17]
In the case of tenants in common, the matter is governed by RPAPL § 541. The occupancy of one tenant in common is deemed to be the possession of the other for ten years.[18] In other words, a tenant in common will take ten years to become an adverse possessor; the entire adverse possession process will take twenty years. However, where a tenant in common was ousted by one tenant, the other tenant may then start to adversely possess.
For example, the erection of house and improvements within a disputed area is so open, public, and unequivocal that it clearly constitutes ouster and renders inapplicable the additional 10-year period.[19]
2. What About Easements by Prescription?
An easement is a person’s right to use another person’s land; for example, a neighbor may have the right to walk across another’s lawn to get somewhere. The requirements for establishing a prescriptive easement – i.e. not an easement that is negotiated by the parties – are similar to adverse possession.[20] The person wanting the easement must establish by clear and convincing evidence that the use of the land was adverse, open and notorious, continuous and uninterrupted for 10 years.[21] However, exclusivity is not essential to a claim for easement by prescription.[22] In other words, to establish an easement by prescription, the party must establish by clear and convincing evidence possession that was hostile and under a claim of right; actual; open and notorious; and continuous for ten years.[23]
3. What if the 10-Year Period Finished / Vested Before 2008?
The 2008 amendments to the adverse possession statutes do not apply where the adverse possessor’s property right vested prior to the enactment of those amendments. [24]
4. What if my Neighbor Is the Government or Part of the State of New York?
The state asserting title by adverse possession is bound by the same laws and must prove the same facts as an individual.[25]
5. So What exactly was amended in 2008?
In 2008, the New York State Legislature amended Article 5 of the Real Property Actions and Proceedings Law (RPAPL) and altered the standards for an adverse possession claim. There were three main changes. First, the definition of “claim of right” was added:
“A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner…” N.Y. RPAPL § 501(3)
Second, one of the traditional requirements of possession is changed from:
“land is deemed to have been possessed and occupied . . . [w]here it has been usually cultivated or improved.” N.Y. RPAPL § 522 (1962)
to:
“land is deemed to have been possessed and occupied . . . [w]here there have been acts sufficiently open to put a reasonably diligent owner on notice.” N.Y. RPAPL § 522 (2008).
Finally, it adds that de minimis nonstructural encroachments and maintenance activities are now permissive:
1… the existence of de minimus 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.
2… the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner’s property shall be deemed permissive and non-adverse.
N.Y. RPAPL §543.
The text and supporting legislative history indicate that the 2008 legislation was designed to discourage “bad faith” adverse possession claims possible under previous law.[26]
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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