Adverse Possession in New York–Fences

Remember the old adage– good fences make good neighbors? Well that’s not always the case, especially as neighbors get closer and closer to each other.

In this litigagion, the Defendants owned three residential parcels which adjoined property owned by the Plaintiffs. The offending fence was located three (3) feet within the boundary lines of the Plaintiffs’ parcel and extended the length of the Defendants’ property.

The Plaintiffs notified the Defendants that the Plaintiffs were going to replace the fence with a new fence and were going to re-locate it to their property line. That should clarify things for each of the parties– or so they thought.

The Defendants did not want to see the fence moved so they objected, and the Plaintiffs commenced action to quiet title and “eject” the Defendants from the use of the land lying between the fence and the actual property line. The Defendants counterclaimed that they owned the three foot sliver of land by “adverse possession.”

The Supreme Court, Nassau County, granted the Plaintiffs’ motion for summary judgment and dismissed the adverse possession claim because there was no proof that the land between the fence and the property line was “usually cultivated or improved” by the Defendants or “protected by a substantial inclosure”, as required by Real Property Actions and Proceedings Law, Section 522 (“Essentials of adverse possession under claim of title not written”). Contrary to the Defendants’ arguments, the fence was not theirs.

According to the Court,

“substantial and obvious alteration is required” to establish that the land was “usually cultivated or improved … Even the placement of a structure, such as a garage, is not enough to establish hostile possession by improvement if that structure lies mainly on the claiming party’s land and the encroachment on the disputed property is slight”. In addition, “the mere presence of a fence is insufficient [to show a ‘substantial inclosure’].

The morale of the story according to the Court was that there must be a showing that it was a substantial barrier erected by the party claiming adverse possession, without the consent of the owner”. RSVL Inc. v. Portillo, decided September 11, 2007, is reported at 16 Misc.3d 1137 and 2007 WL 2669463.

In any adverse possession claim, as with any factual dispute that reachs the level of litigation, minute and often overlooked facts play a role in the court’s determination. You, as a good neighbor, should contact experienced real estate litigation counsel to consider how the facts of your case might change the outcome.

Bottom line: hire a surveyor to place your fence properly, and get competent legal advice from a New York real estate litigator or civil trial attorney.