adverse possession under the 2008 amendments

Adverse Possession Defined: Old Law

To establish adverse possession, the following five elements must be proved: Possession must be:

1. Hostile and under a claim of right

2. Actual

3. Open and notorious

4. Exclusive

5. Continuous for the required period (10 years)▫ Belotti v. Bickhardt, 228 N.Y. 296, 302 (N.Y. 1920)

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Under the new law, the requirements under the old law still exist. However, the amendments have more narrowly defined what qualifies as actual

possession and what constitutes possession under a claim of right.

▫ NY CLS RPAPL § 501

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Adverse Possession Defined: New Law


Statute of Limitations for Adverse

PossessionRemains the same under the new law

NY CLS CPLR § 212

Possession necessary to recover real property. An action to recover real property or its possession

cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of

the premises within ten years before the commencement of the action.

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NY CLS RPAPL § 512

Essentials of adverse possession under written instrument or judgment

“… land is deemed to have been possessed and occupied in any of the following cases:1. Where there has been acts sufficiently open to put a reasonably

diligent owner on notice.

2. Where it has been protected by a substantial enclosure, except as provided in subdivision one of section five hundred forty-three of this article.

3. Where, although not enclosed, it has been used for the supply of fuel or of fencing timber, either for the purposes of husbandry or for the ordinary use of the occupant.”

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Adverse Possession Defined: New LawAmendments to Actual Possession Requirement


NY CLS RPAPL § 522

Essentials of adverse possession not under written instrument or judgment

Land is deemed to have been possessed and occupied only:

1. Where there have been acts sufficiently open to put a reasonably diligent owner on notice.

2. Where it has been protected by a substantial enclosure, except as provided in subdivision one of section five hundred forty-three of this article.

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Adverse Possession Defined: New LawAmendments to Actual Possession Requirement

NY CLS RPAPL § 543

Adverse possession; how affected by acts across a boundary line

1. … the existence of de minimus [de minimis] 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 to be permissive and non-adverse.

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Adverse Possession Defined: The New LawAmendments to the Actual Possession Requirement

Specific Exceptions

Claim of Title

Under the old law, knowledge that rightful title belongs to another did not defeat a claim of right.

Walling v. Przybylo, 7 N.Y.3d 228 (N.Y. 2006)

Claim of RightNY CLS RPAPL § 501(3)

Under the new law, a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor

or property owner, as the case may be. Notwithstanding any other provision of this article, claim of right shall not be required if the owner or owners of the real property throughout the statutory period cannot be ascertained in the records of the county

clerk, or the register of the county, of the county where such real property is situated, and located by reasonable means.

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Claim of Title (Old Law) vs.

Claim of Right (New Law)


Walling v. Pryzbylo


Seminole case that prompted the legislature to amend the adverse possession statute and define a

“claim of right.”

In Walling v. Przybylo, the Wallings and the Przybylosowned adjoining properties. The Wallings began using a

portion of the Przybylos’ property as their own.

• Bulldozed and deposited fill and topsoil on disputed property

• Dug a trench and installed pipes for the purpose of carrying water to and under the disputed parcel, ultimately discharging the water in and over the disputed parcel.

• Constructed an underground dog wire fence to enclose their dog and continuously mowed, graded, raked, planted, and watered the grassy area in dispute.

• Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of the pipeline.

• Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the Wallings near the northwesterly corner of the grassy part of the disputed territory.

• Since 1992, the post and birdhouse have remained in place. ▫ Walling v. Przybylo, 7 N.Y.3d 228, 230-231 (N.Y. 2006)

◦ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession Changes Make Result Less Certain, 2009 The New York L. J., Feb. 11, 2009 at (2009).

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In 2004, the Przybylos discovered that they had title to the portion of the land that the Wallings had been

using. The Wallings filed suit to quiet title. The Przybylos attempted to prove that Wallings knew they

did not own the disputed parcel.

Holding: The Court of Appeals held for the Wallingsand declared that “actual knowledge that another person is the title owner does not, in and of itself, defeat a claim of right by an adverse possessor.”

▫ Walling v. Przybylo, 7 N.Y.3d 228 (N.Y. 2006)◦ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession Changes

Make Result Less Certain, 2009 The New York L. J., Feb. 11, 2009 at (2009).

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Claim of Title vs. Claim of Right

The 2008 amendments removed the term “claim of title” from every instance which it appeared

throughout the adverse possession statute.

The term “claim of title” was replaced with the term “claim of right”

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Claim of Right

The 2008 Amendments went on to specifically define “Claim of Right” as having “a reasonable basis for the belief that the property belongs to

the adverse possessor or the property owner as the case may be.” RPAPL 501(3)

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Claim of Title vs. Claim of Right

As a result, no person may now acquire title to land by adverse possession without showing a

claim of right to the land founded on a “reasonable basis for the belief that the

property belongs to the adverse possessor.”

▫ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession After the 2008 RPAPL Amendments, 2010 The New York L.J., Oct. 13, 2010 at (2010)

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Calder v. 731 Bergan, LLC83 A.D.3d 758 (N.Y. App. Div. 2d Dep't 2011)

Belief that the Government Sold Adverse

Possessor Disputed Land

Plaintiffs sought to establish a claim of right over a certain disputed property. Plaintiffs sought to

establish a reasonable basis for their claim of right by submitting an affidavit of one of the plaintiffs

stating that they were advised that they owned the disputed property when they purchased the property from the United States Secretary of

Housing and Urban Development in 1974.

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Calder v. 731 Bergan, LLC (Cont.)Relying on the Government

Citing the new law, the Appellate Division found that the plaintiffs affidavit stating their reliance

was based on an assurances from a governmental agency was sufficient to establish a “reasonable

basis for the belief that the property belongs to an adverse possessor”

▫ Calder v 731 Bergan, LLC, 83 A.D.3d 758, 759 (N.Y. App. Div. 2d Dep't 2011)

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Ziegler v. Serrano 74 A.D.3d 1610 (N.Y. App. Div. 3d Dep't 2010)

Adverse Possession Pursuant to a Mistaken Deed

“Their continued possession of the property since 1985 under the [mistaken] deed … provided plaintiffs with a reasonable basis to believe

that they owned the property.” (citing RPAPL 501[3] as amended)

▫ Ziegler v Serrano, 74 A.D.3d 1610, 1612 (N.Y. App. Div. 3d Dep't 2010)

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Actual Possession Under the New Law

“De minimus encroachments”

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of adverse

possession.

A person or entity is an "adverse possessor" of real property when the person or entity occupies real

property of another person or entity with or without knowledge of the other's superior ownership rights, in a manner that would give the owner a cause

of action for ejectment.• RPAPL 501(1)

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The statute went further to limit the kinds of acts which rise to a “manner that would give the owner a cause of action for ejectment” by specifically excluding certain common actions as “de minimus” and “non adverse”

1. “…the existence of de minimus [de minimis] 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.”

▫ NY CLS RPAPL § 543

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Actual Possession Under the New Law“De minimus encroachments”

Hartman v. Goldman


The First Case Using the New Law

Actual Possession Under the New Law

“De minimus encroachments”The First Case Using the New Law

• Section 9 of the Amendments states that the new law “shall take effect immediately, and shall apply to claims filed on or after such effective date.”

• However, Courts have recognized that where adverse possession rights have vested prior to the amendments, the old law should still apply.

• In Hartman v. Goldman, the alleged adverse possession rights would have vested prior to the enactment of the amendments.

• However, due to clever lawyering, defendant’s attorneys were able to get the plaintiff to stipulate that the new law applied, and the court did not disturb their stipulation.

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Hartman v. Goldman, 84 A.D.3d 734

(N.Y. App. Div. 2d Dep't 2011)

“Under the plain terms of RPAPL 543 as amended, the plaintiffs' plantings of foliage and shrubbery, and

landscaping and lawn maintenance are de minimisand deemed permissive and non-adverse (see Sawyer

v Prusky, 71 AD3d 1325, 1327, 896 NYS2d 536 [2010]). Further, the driveway lights installed by the plaintiffs, which are approximately four feet high and six inches in diameter, are also governed by RPAPL 543, which applies to all de minimis, non-structural encroachments "including, but not limited to," those

expressly listed in the statute.”▫ Hartman v Goldman, 84 A.D.3d 734, 736 (N.Y. App. Div. 2d Dep't 2011)

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Plaintiff’s action would be time barred if the right of way was extinguished by adverse possession.

The court noted that the 8 foot wide hedge is not necessarily “de minimus” under the newly enacted

RPAPL 543(1) simply because “hedges” are specifically excluded.

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8 Foot Wide HedgeWright v. Sokoloff, 110 A.D.3d 989 (N.Y. App. Div. 2d Dep't 2013)


• “The plaintiff contends that pursuant to RPAPL 543 (1), the existence of all encroaching hedges and shrubbery, no matter how large, shall be deemed permissive and non-adverse. Under the plaintiff's interpretation of the statute, the list of examples contained in RPAPL 543 (1) are examples of "de [minimis] non-structural encroachments." We reject this interpretation.”

• “The more reasonable interpretation of RPAPL 543 (1) is that the list contains examples of "non-structural encroachments" which could still be adverse if they are not de minimis. This reading gives effect to the words "de [minimis]," while the plaintiff's interpretation would render those words superfluous.”

• However, the Court held that because the hedge could be considered “de minimis” under the new law, a triable issue of fact existed as to whether the defendants had extinguished the right of way by adverse possession. As a result, Defendant’s summary judgment motion should have been denied.

▫ Wright v Sokoloff, 110 A.D.3d 989, 990-991 (N.Y. App. Div. 2d Dep't 2013)

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De MinimisWright v. Sokoloff, 110 A.D.3d 989 (N.Y. App. Div. 2d Dep't 2013)

Application of the New Law

Section 9. This act shall take effect immediately, and shall apply to claims filed

on or after such effective date.Laws 2008, ch 269, § 9, eff July 7, 2008

Should the new law be applied to claims which are filed after the effective date of the amendments, but

which deal with property rights that would have allegedly vested by adverse possession before July

7th, 2008?

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The Court of Appeals

The Court of Appeals has not yet decided a case where the claim was filed after the amendments

effective date but where title by adverse possession allegedly vested prior to the

amendment’s enactment.

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Plaintiff’s commenced an action for adverse possession in 2005 where alleged adverse

possession rights would have vested in 1973.

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Court of AppealsEstate of Becker v. Murtagh, 19 N.Y.3d 75

(N.Y.1012)


Footnote 4:

“The 2008 amendments are not applicable to the instant appeal because Mr. Becker's title vested (by adverse possession), and

this action was instituted, before the effective date of the amendments.”

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Court of AppealsEstate of Becker v. Murtagh, 19 N.Y.3d 75

(N.Y.1012)


The Appellate Divisions

The four Appellate Divisions have come to contrary conclusions as to the application of the new law to claims filed after the effective date of

the amendments but which affect rights allegedly vested prior to their enactment.

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With respect to claims filed after enactment of the amendments:

• No cases decided by the First Department have relied on the adverse possession statute

• 13 cases decided by the Second Department have applied the old law and 3 have applied the new law and 1 cited

the new law but did not discuss its application• 5 cases decided by the Third Department have applied

the old law and 2 have applied the new law and 1 cited the new law but did not discuss its application

• 4 cases decided by the Fourth department have applied to old law and none have applied the new law

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The Appellate Divisions


First Department

The First Department has yet to decide a case which relies on the Adverse Possession Statute since the

2008 Amendments have gone into effect.

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Every adverse possession case brought by the Fourth Department has held that where the title

would have vested by the alleged adverse possession prior to the effective date, the old law will apply, regardless of whether the claim was

filed after the effective date of the Amendments.

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Fourth DepartmentConsistent Decisions:

All decisions follow Franza v. Olin


Franza v. Olin73 A.D.3d 44 (N.Y. App. Div. 4th Dep’t 2010)

Fourth Department• This was the first appellate decision to rule on the

retroactive application of the 2008 amendments to the adverse possession statute. The Court did not apply the new law.

• The Court reasoned that although the claim was filed six weeks after the enactment of the Amendments, title would have vested in the adverse possessor before the enactment of the Amendments. As a result, deciding the case under the new law was unconstitutional because it would deprive the plaintiff of her vested property rights.

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• It is well-settled law that the adverse possession of property for the statutory period vests title to the property in the adverse possessor.

• "[A]dverse possession for the requisite period of time not only cuts off the true owner's remedies but also divests [the owner] of his [or her] estate"

• Thus, at the expiration of the statutory period, legal title to the land is transferred from the owner to the adverse possessor

• Title to property may be obtained by adverse possession alone, and "[t]itle by adverse possession is as strong as one obtained by grant"

▫ Franza v. Olin, 73 A.D.3d 44 (N.Y. App. Div. 4th Dep’t 2010)

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Franza v. Olin (Cont.)

Fourth Department

“It therefore follows that, where title has vested by adverse possession, it

may not be disturbed retroactively by newly-enacted or amended

legislation.”

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Fourth Department

The Court then analyzed plaintiff’s acts of mowing and maintaining the lawn, and the erecting certain

structures under the old law. Consequentially, adverse possession was found to have been

established.

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Fourth Department

• The Second Department has come to different conclusions on whether to apply the old law or new law when rights have allegedly vested before the amendments enactment.

• 4 adverse possession cases decided since enactment of the Amendments mention the new law.

• Two of these cases decided by the Second Department have expressly applied the new law regardless of when rights had vested.

• One case of these cases decided by the Second Department applied the new law because both the filing of the claim and the alleged vesting of title occurred after July 7th, 2008.

• One of these cases applied the both the old law and the new law despite the court not stating how the plaintiff satisfied the new law’s additional requirement that the claim of right be based on a reasonable basis.

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Second Department


Second DepartmentCases which have applied the new law

▫ Hartman v. Goldman, 84 A.D.3d 734 (N.Y. App. Div. 2d Dep't 2011) The new law was applied where, due to clever lawyering, although

rights would have allegedly vested prior to the amendments, both parties stipulated that the new law would apply.

▫ Calder v. 731 Bergan, LLC, 83 A.D.3d 758 (N.Y. App. Div. 2d Dep't 2011) The new law was applied where, even though rights would have

allegedly vested prior to enactment of the amendments, analysis under the Adverse Possession Statute as it was prior to the amendments would not have yielded a different result.

▫ Wright v. Sokoloff, 110 A.D.3d 989 (N.Y. App. Div. 2d Dep't 2013) The Court applied the new law where both the commencement of

the action and the alleged vesting of title occurred after the enactment of the amendments.

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Although the case was commenced in 2009, property rights would have allegedly vested prior to the enactment of the 2008 Amendments. The

court discussed both the old and the new law, and analyzed the facts under both, stating that the

result would have been the same in either instance. However, the court did not mention

how the plaintiff’s had satisfied the new requirement that a claim of right be founded

upon a reasonable basis.

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Maya's Black Cr., LLC v Angelo Balbo Realty Corp.82 A.D.3d 1175 (N.Y. App. Div. 2d Dep't 2011)

Second Department

The Court noted the Fourth Departments decision that “the law in effect at the time that the

purported adverse possession allegedly ripened” should apply, but stated “we need not reach this

issue decided by the Fourth Department in Franzav. Olin because the complaint states a cause of action under both the law as it exists today and

the law as it existed prior to July 7, 2008.”

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Maya's Black Cr., LLC v Angelo Balbo Realty Corp.82 A.D.3d 1175 (N.Y. App. Div. 2d Dep't 2011)

Second Department

Third Department

The Third Department has also come to different conclusions on this issue.

Two cases applied the new law regardless of when the alleged rights would have vested.

One case cited to the new law but did not discuss its application.

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Third DepartmentTwo cases decided by the Third Department expressly apply the 2008 Amendments in their decision.

▫ Ziegler v. Serrano, 74 A.D.3d 1610 (N.Y. App. Div. 3d Dep't 2010) In a case started in September of 2008, the Third Department applied the

new law, and found adverse possession pursuant to a 1985 deed which would have vested title in the adverse possessors in 1995.

The new law was applied because neither of the litigants mentioned that the old law may be applied. Therefore, the Court applied the new law despite recognizing that the title would have vested prior to 2008.

▫ Sawyer v. Prusky, 71 A.D.3d 1325 (N.Y. App. Div. 3d Dep't 2010) In an action commenced in September of 2008, where the alleged acts of

adverse possession occurred “between 1997 and 2008,” the Court applied the new law without hesitation to find the disputed rock wall to be “de minimis” and “non-adverse.” As a result, plaintiffs’ claim for adverse possession was dismissed.

▫ Comrie, Inc. v Lake Ave., Inc., 86 A.D.3d 856 (N.Y. App. Div. 3d Dep't 2011) Plaintiff’s argument that he had title by adverse possession failed where

prior, failed attempts to establish adverse possession negated plaintiff’s claim of right, citing RPAPL 501(3) but not discussing the “reasonable basis” requirement.

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THE END


adverse possession under the 2008 amendments

Law

possession necessary

adverse possessionremains

adverse possessor

new law adam leitman

new lawamendments

claim of rightny cls

property owner

new lawny cls cplr