Adverse possession, Walling decision, and its application in the 1st, 2nd, 3rd Departments.

As a result of recent Court of Appeals and Statutory Changes in New York, litigation and law suits relating to adverse possession are wending their way through trial and appellate courts throughout the state.

Adverse possession is a method of gaining title to property. Although not the favored means to procure land, a person may acquire title to land by adverse possession if she holds the property in a manner that conflicts with the rights of the true owner for a period of time.

There are five elements that establish a claim of adverse possession. Possession must be 1) hostile and under claim of right, 2) actual, 3) open and notorious, 4) exclusive, and 5) continue for the specified period as determined by jurisdiction. Adverse possession is generally a question of fact to be decided by a court. Recent decisions in New York have included:

In Walling v. Przybylo, the plaintiffs deposited fill and topsoil, dug a trench, installed drainage pipes, and an underground dog fence and a bird house on a disputed parcel of land. The court ruled that the plaintiffs were adverse possessors because they had actually, openly and notoriously, exclusively and continuously possessed and ‘cultivated’ the disputed parcel for the ten year required period. Notably, the court held that the plaintiff’s potential knowledge that the parcel was owned by the defendants was inconsequential because adverse possession is fundamentally the defendants’ compliance to the plaintiffs’ open ownership. (2006).

Application of the Walling Decision:

1. First Department: In United Pickle Products v. Prayer Temple Community Church, 843 N.Y.S.2d 1 (N.Y.App. Div. 1st Dept. 2007), the defendant leased the disputed property to the plaintiff since 1979. The plaintiff brought suit to quiet title under the doctrine of adverse possession arguing the defendant had made no claim to be the rightful owner during which the plaintiff’s use of the property was actual, exclusive, open notorious, and continuous for at least ten years. Applying an interpretative analysis of Walling, the court articulated the exclusive access to the disputed lot by the plaintiff amounted to hostile possession, or ‘cultivation.’ This type of ruling applies in New York City and the Bronx Counties.

2. Second Department: In Merget v. Westbury Props., LLC, 885 N.Y.S.2d 347 (N.Y. App. Div. 2nd Dept. 2009), the plaintiffs brought an action to quiet title based on adverse possession alleging they cleared debris to use the disputed parcel of land as duel yard and parking lot as well as maintaining the property by planting trees and shrubbery for the requisite ten year period. As in Walling, the court ruled in favor of the plaintiffs reasoning that there was not only clear and convincing evidence that the plaintiffs’ possession of the property satisfied the elements of adverse possession by being actual, open, notorious, and exclusive, but more importantly, the plaintiff’s had ‘usually cultivated or improved’ the disputed lot during the ten years. This judicial department handles Nassau, Suffolk, Dutchess, Westchester, Rockland Counties.

3. Third Department: In Robinson v. Robsinson,825 N.Y.S.2d 277 (N.Y.App.Div 3rd Dept. 2006), the plaintiff sought title to the property by virtue of adverse possession. The plaintiff stated he had operated a seasonal canoe rental and camping business since 1987, and in doing so he had placed signs on the property, mowed the grass, cleared debris, maintained shrubbery, and blocked the use of the property by trespassers. Similar to Walling, the court articulated that the plaintiff’s cultivation and improvement on the property through maintenance satisfied the elements of adverse possession. This judicial department rules in upstate New York and includes Ulster County.

The bottom line– you must hire a competent New York State trial and real estate attorney to assess the situation in your specific case. Documents, testimony and actions may change the course of the claim and your right to claim or your defense to adverse possession in New York. At Klose & Associates, we carefully investigate these situations.

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