What is Adverse Possession?

Under New York Law, the court can, in certain limited circumstances, award title of land to a person who proves adverse possession of another’s property for a period in excess of 10 years. This branch of the law is sometimes referred (derogatorily) to as “squatter’s rights.” In other words, it is possible that a person who did not buy and pay for land could be determined by the court to own it. Adverse possession is an ancient legal doctrine that can be traced back to 13th Century English law. It is also closely related to the doctrine of prescriptive easements, discussed here.

Notwithstanding its ancient origin, issues of adverse possession are very much alive in the Hamptons today. A hedge, fence, driveway or shed in the wrong place can sometimes have drastic consequences for property ownership.

How Do You Prove Adverse Possession?

If you are trying to obtain ownership of land through adverse possession, you must meet a high evidentiary bar. Under longstanding common law doctrine, you must prove that your possession of the land in question was:

• hostile and under a claim of right
• actual
• open and notorious
• exclusive; and
• continuous.

Those five common-law factors have been in place for hundreds of years. New York has long had an additional requirement that you prove that the property has been “usually cultivated or improved” or protected by a “substantial enclosure.”

However, in 2008, the New York State Legislature changed the law of adverse possession significantly. In an effort to curtail what might be considered the “offensive” or “stealth” use of the doctrine of adverse possession, it made adverse possession much more difficult to prove.

Whether those 2008 amendments apply to a particular case, however, involves a complex factual analysis and has itself been the subject of much litigation. Under the current state of the law, it appears that if the adverse possession began prior to July, 1998, then the 2008 amendments do not apply.

If, however, the adverse possession started after July, 1998, then the 2008 amendments would apply, making it harder to prove adverse possession. The 2008 amendments provide that “the existence of de minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls” are not sufficient to prove adverse possession; nor are “acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner’s property.” Furthermore, the 2008 amendments require that you must have had “a reasonable basis for the belief” that the property in question belonged to you.

As this discussion makes clear, the law of adverse possession is rapidly changing, and courts are still in the process of reacting to the legislature’s 2008 changes.

How Do You Win an Adverse Possession Claim?

Whether you are making an adverse possession claim yourself, or your neighbor is making one against you, you need a lawyer who is familiar with all of the intricacies of the rapidly changing law of adverse possession.

Your lawyer must collect and thoroughly review a vast array of evidence, including surveys, aerial photos, historical maps, deeds, easements, covenants and many other documents that may be on file in the County Clerk’s office and the local municipalities. You need a “scorched earth” discovery process that covers not only documents in the parties’ possession but uses subpoenas to local surveyors, title companies, predecessor owners and other sources.

When it comes to the trial (or a summary-judgment motion), your lawyer has to present this evidence to the court by calling on experts in a variety of fields. Our office has built relationships with top experts in the fields of aerial photography, surveys and title research who are ideally suited to present the complex evidence involved in adverse possession cases effectively to the court.

Case Study:

Exhaustive Research and Creative Thinking Are Crucial to Winning Adverse Possession Cases

In 2013-14, I represented the owner of a vacant parcel of land in the Southampton Village Estate section. She had bought the property in the 1970s and had been living out of the country for many years. She decided to sell the property and entered into a contract for a substantial price, but a survey revealed that her neighbors had made a major encroachment on her land. Both my client’s property and the neighbors’ property were each about 1 acre in size, but the neighbors had encroached upon almost half of my client’s lot. The neighbors claimed that they had become owners of the encroachment area through adverse possession. The sale could not proceed until this dispute was resolved.

I marshaled all of the relevant evidence and legal arguments in court papers, and made an injunction motion to the Supreme Court, Suffolk County (in Riverhead, N.Y.). The judge issued a temporary restraining order requiring the neighbors to remove their encroachments immediately. Because of my “scorched earth policy” toward research, I then unearthed tax records going several years back, showing that that the neighbors had sued the Town to try lower their taxes, claiming that their property was only 1 acre in size. I submitted papers to the court arguing that the neighbors’ position when they wanted to lower their taxes was inconsistent with their claim that they were owners of an additional half-acre of my client’s land. Shortly thereafter, a settlement was reached on terms favorable to my client and her sale was closed.

The Leading Case on “Tacking”

If the party claiming adverse possession has purchased the property less than ten years ago, then whether they can succeed on their claim depends on whether they can “tack” onto the adverse possession of the party who owned the property before them. In 2007, I handled a case in the Appellate Division, Second Department (the appellate court in Brooklyn, NY, which handles appeals from all of Long Island), which established the defining legal standard for “tacking” in an adverse possession case: Reis v. Coron, 37 A.D.3d 803 (2d Dep’t 2007). In that case I represented a property owner in East Hampton whose neighbor claimed adverse possession of a portion of his property. This neighbor had purchased less than ten years ago and his deed did not include the area that he claimed to own; nor did he produce any evidence that the seller of his property “intended to and actually turned over possession of the land at issue” to him. As a result, the court dismissed the adverse possession claim. My winning decision in Reis v. Coron has been cited in numerous subsequent court decisions concerning “tacking” in adverse possession cases, and the court papers I wrote and submitted in those cases have been published by Bender’s Forms for the Civil Practice ⎯ the leading source of forms in New York State.