Robinson Brog Leinwand Greene Genovese & Gluck, P.C. - New York City Business Litigation Attorneys


WOW!!! Someone Stole My Real Estate

by Robert M. Milner

Can this happen?  You bet it can, and not infrequently.  How is this possible?  Since the reign of Henry VIII (1491-1547), the right of an individual to claim title to lands that he did not own, but did occupy for a given period, has been recognized under a doctrine known as “adverse possession.” 

Under the doctrine of adverse possession, the law requires a property owner to be vigilant in protection of his property rights.  The results of a property owner’s failure to be vigilant are often inequitable.

The elements of adverse possession are set forth in § 501 of the Real Property Actions and Proceedings Law of New York (the RPAPL).  This statute underwent a controversial amendment in July of 2008, which overturned well-recognized precedent establishing the elements necessary to succeed in a claim of adverse possession.

To succeed in a claim for adverse possession, the real property must be held for a minimum of ten years.  Under § 501(2) of the RPAPL, the possession must be “adverse, under claim of right, open and notorious, continuous, exclusive and actual.”  This definition applies to all claims of adverse possession filed on or after the effective date of the statutory amendments (July 7, 2008).

 Recent cases have held that if adverse possession was obtained prior to the effective date of the revised statute, ie if the ten year period of adverse possession was attained prior to July 7, 2008, the old law applies.  Those holdings can have result that would be contradictory had the adverse possession been obtained subsequent to July 7, 2008.

One of the most significant changes made by the new statute is to codify the definition of the “claim of right” requirement such that one may not claim adverse possession if one does not reasonably believe that they own the disputed property. 

Prior to the statutory amendment, the claim of right requirement was based on an objective, rather than subjective, evaluation of the claims of the adverse possessor.  Newly amended §501(3) now defines a claim of right as meaning that a party claiming adverse possession has “a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be.”  (There is, however, an exclusion applying to real property if the record owner cannot be ascertained in the real property records or located by reasonable means.) 

This seemingly reasonable definition will have significant impact upon claims of adverse possession.  Previously, there had been a difference in the judicial districts of the Appellate Division in New York as to whether one could claim adverse possession if one was aware that the property was owned by another.  Ultimately, the Court of Appeals, in the landmark case of Walling v. Przybylo, 7 N.Y.3d 228 (2006) adopted the view of the Third Judicial Department that a claim of adverse possession could succeed, notwithstanding the claimant’s actual knowledge that another owned the property at some point in time, if all of the other elements of adverse possession were met. 

The losing party in the Walling case then succeeded in lobbying for and getting a bill passed by the legislature that would have overruled Walling.  The bill was vetoed by Governor Spitzer.  Subsequent to the resignation of Governor Spitzer, however, a modified version of the legislation was pushed through the legislature, passed, and signed into law by Governor Patterson, notwithstanding substantial opposition from some bar associations.  Thus, under the new law a claim of adverse possession can be defeated if the party claiming adverse possession cannot substantiate “a reasonable basis for the belief that the property” is owned by the claimant.  The new law served to overrule decades-long precedent and to create new ambiguities that have yet to be addressed or resolved.  It is not unlikely that additional revisions to the existing statute will be attempted, but whether they succeed remains to be seen.

In the meantime, should you desire to protect your propertyfrom claims of adverse possession, extreme diligence is necessary to make sure that no one builds an enclosure on or around your property, whether by fence or otherwise, encroaches on your property by building a structure or road, or otherwise takes actions that interfere with your property rights.  In this connection it is important to understand that one of the elements of adverse possession is “hostility.”  Stated simply, this means that the party claiming adverse possession must show that the same was held without the consent of the party owning the property, without consent to the use.  That consent would destroy the hostility element and no adverse possession could be obtained.  Caution requires that such consent be in writing and acknowledged by the party claiming adverse possession.

We have had significant success in litigating adverse possession claims and always remain current on developing law in the area.