The New York Legislature Undertakes a Definition of Adverse Possession

Governor signed Chapter 269 of the Session Laws of 2008, which significantly amends the Real Property Actions and Proceedings Law in New York State. What does that mean for the average homeowner and neighbor embroiled in a dispute over property lines or boundariesr? Only time will tell, but it appears that it may become more difficult to prove that you own a portion of your neighbor’s property if you do not have a “good faith” claim of right to such property.

In the aftermath of two fairly controversial rulings by the Court of Appeals (New York’s highest court) and a mid-level appellate court, the Legislature decided that homeowners (and their real estate litigators) needed a better definition of what it means to “adversely possess” a piece of your neighbor’s property. The new law significantly alters the requirements that must be met before courts will find that title to real property has changed under the doctrine of adverse possession.

Under the new law (effective July 2008), which actually changes various parts of other laws, the Legislature seems to have expressed the view that the existence of minor, non-structural encroachments such as fences, hedges, shrubbery, plantings, sheds and non-structural walls are deemed, as a matter of law, to be permissive and non-adverse. In every day terms, the existence of fences, planters, hedges, shrubbs, and similar objects often placed on or close to your property line will not change who actually owns that slice of property, and will not give rise to a claim for adverse possession. Just because you put your fence on a piece of your neighbor’s property, does not mean you own the property– there are various other facts and conduct required.

The new legislation specifically provides that the acts of lawn mowing or similar maintenance across boundary lines by your neighbor are deemed “permissive and non-adverse”– that is, neighborly. Such language should be a breath of fresh air for some people who are not quite sure whether they are mowing their own property or helping their neighbors. The Legislature is erring on the side of neighborly accommodation.

By enacting the law, the Legislature tries to insert some “certainty” by defining for the residents of New York that an “adverse possessor” of real property is a person or entity that ‘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.’

If that “adverse possessor” holds its status for ten (10) years, he can apply to the court for title to that portion of land provided that the “occupancy” was “adverse, under claim of right, open and notorious, continuous, exclusive, and actual. “Claim of right” is no defined by the statute to mean that the person claiming possession and title had “a reasonable basis for the belief that the property belongs to [that property owner].”

The most significant change for homeowners and the courts is the wholly new section of law, RPAPL, Section 543, which specifically states that “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.” This means that you can’t simply claim another’s property by mowing a part of their lawn.

Stated in easy to understand terms, the legislative history of this law suggests that when considering whether someone has actually taken over possession of property “adversely” the courts will consider whether such claim was in “good faith,” recognizing that the legal tool known as “adverse possession” should be used to settle good faith disputes over who owns land, and should not be used offensively to deprive a landowner of title to the real property.

So, go on mowing your neighbor’s lawn, but don’t expect to claim that area of land unless you install your pool on that slice of land, and hold it there for ten (10) years.

Contact experienced local New York real estate litigation lawyers and counsel to consider the ramifications.