Legal Question in Real Estate Law in New York

Here is a synopsis of NY adverse possession law, which explains what the neighbor can claim and your defense. I suggest retaining a local real estate attorney and consider a suit for either trespass or ejectment.

I. Introduction

Throughout American history, the doctrine of adverse possession has played a role in ensuring the possession of land by those who recognized its potential and used it productively. At the same time, the doctrine penalized those who neglected their property and allowed it to fall into disrepair. However, some recent trends have limited the ability to acquire land by adverse possession. In 2008, New York joined this movement when the legislature significantly modified the adverse possession law.1

This article discusses the injustice that will result from the New York changes and the decline in personal responsibility of landowners. Part II explains the historical purposes of adverse possession. Part III discusses how New York�s prior law furthered these legitimate goals. Part IV analyzes how New Jersey�s changes in adverse possession law departed from the doctrine�s traditional principles and produced inequitable outcomes. Part V focuses on how the New York statutory changes similarly lessen landowner responsibility and industrious land uses. Part VI briefly concludes with a recommendation that New York return to its prior approach. This article demonstrates that the original purposes of adverse possession remain relevant in today�s society and that the new changes are detrimental to land productivity and use.

II. The Purposes of Adverse Possession

Most legal scholars agree that adverse possession dates back to the thirteenth century;2 however, some evidence suggests that the principle originated in Roman times.3 Regardless of its origins, adverse possession has been part of American law since its founding.4 For a successful claim of adverse possession, the adverse user must typically show that the occupation is hostile, actual, open and notorious, exclusive, and continuous for the statutory period.5 The law of adverse possession is the culmination of a number of concerns and theories about land use and ownership.

A primary reason for the development of adverse possession law was to promote the productive use of property.6 Adverse possession law allows the person in long-term possession to improve and make investments in property without the fear that the fruits of his labor will be enjoyed by the lazy title owner.7 This theory derives from the view that society should support �the industrious user rather than the idle claimant.�8

Another theory is that adverse possession creates an incentive for the landowner to be proactive.9 To prevent an adverse possession claim, an owner should regularly inspect, maintain, and control his own land. While this can be done simply by scanning one�s own property, it is certainly more constructive to put that land into production10 before a non-owner seizes the opportunity. In sum, this theory was meant to invoke personal responsibility in the landowner to oversee and supervise the activities on his property.

A different theory rests in fairness. This theory suggests that as time progresses, the balance of justice shifts from the true owner, who failed to eject the possessor, to the person who actually possessed the land.11 Similar to many other legal rules, adverse possession law subjects an owner�s ability to eject a trespasser to a statute of limitations.12 Once the statute of limitations has run, the possessor�s occupation may have ripened into title.

III. New York�s Former Adverse Possession Law

Prior to 2008, the New York rule allowed for a broad interpretation of the elements of a successful adverse possession claim.13 New York recognized a successful claim even if the adverse possessor knew, upon occupation, that the land was another�s.14 Additionally, New York�s former law allowed for a wide range of productive activities that would be considered adverse. A claimant only needed to show that the land was �usually cultivated or improved� or �protected by a substantial enclosure� under his direction for the ten-year statutory period.15 The courts recognized that the simple acts of mowing the lawn or building and maintaining a fence for the statutory period were sufficient for successful adverse possession claims.16 Even the placement of shrubs was deemed sufficient.17

Many legal scholars suggest that adverse users with intent to divest their neighbors of their property should not be rewarded for their malicious purposes.18 However, the intended focus of adverse possession was not on the knowledge of the industrious user, but rather on the failure of the title owner to act.19 Even if the adverse user was using and maintaining the property with the subjective intent to gain title through adverse possession, his objective could not be realized without the failure of the current owner to either (1) put his own land into production or (2) thwart the adverse user�s actions.20 Therefore, the owner cannot blame the adverse user�s occupation for his loss, but rather his own failure to be a personally responsible landowner by not regularly inspecting, maintaining, and controlling his own property.

Mowing the lawn, building a fence, and planting shrubs may be considered trivial acts at first glance, but a deeper examination reveals that these actions exemplify adverse possession�s intended principles. The owner�s failure to inspect, maintain, and control his property frequently prompted the adverse user to engage in these activities. Aside from the adverse user�s knowledge (or lack thereof) of ownership of the disputed property, his actions put the otherwise untamed property into productive use. These actions serve the community by conserving the neighborhood standard and maintaining property values.21 Furthermore, the adverse user provides this service through his own labor and expense. Therefore, when title transfers to the adverse possessor, it rewards him for picking up the slack of the now former owner.22 Likewise, the prior owner is penalized for neglecting his property, which, if not for the adverse user, would have fallen into unsightly disrepair.23

Lastly, the former owner cannot claim that he is overly burdened by the requirements to inspect, maintain, and control his property. In New York, the owner could accomplish this responsibility simply by walking his land once every ten years and giving permission to those engaging in activities on his property.24 Failure of the owner to even engage in this simple activity clearly shows his lack of personal responsibility and care for his holdings. Once again, a primary goal of adverse possession is to award land to those �who value it much more highly than . . . the record owners.�25