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Adverse Possession Test in New Law Is “All About Good Faith”

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Adverse Possession Test in New Law Is “All About Good Faith” TRENDS EAL STATE Wednesday, July 23, 2008 R E Adverse Possession Test in New Law Is “All About Good Faith” BY ANTHONY S. GUARDINO In May 1987, before the defendants arrived, overnor David A. Paterson signed the plaintiffs bulldozed and deposited fill and Senate Bill 7915-C into law topsoil on the defendants’ northerly side earlier this month, significantly yard, dug a trench, and installed PVC pipe altering the requirements that to carry water from the plaintiffs’ eaves and G downspouts to and under the defendants’ must be met before courts will find that title to real property has changed under the doctrine property. The plaintiffs also constructed an of adverse possession. underground dog wire fence to enclose their Under the new law, which went into dog and continuously mowed, graded, raked, effect immediately upon being signed by planted, and watered the property. In 1992, the governor, the existence of de minimus Anthony S. Guardino the plaintiffs dug a hole near the northwesterly non-structural encroachments such as fences, corner of the grassy part of the defendants’ property and put in a post about 10 feet long, hedges, shrubbery, plantings, sheds and ZONING AND LAND non-structural walls is deemed to be permissive ◆ ◆ on which they affixed a birdhouse. USE PLANNING and non-adverse. Moreover, the law now The defendants had the land surveyed in specifically provides that the acts of lawn mowing 2004 and discovered that they had title to or similar maintenance across the boundary this land. Upon learning of this, the plaintiffs line of an adjoining landowner’s property that, to establish a claim of adverse possession, brought an action to quiet title that reached are deemed permissive and non-adverse. five elements had to be demonstrated. the Court of Appeals. In its decision, the Court The Legislature, seeking to change the Possession had to be: (1) hostile and under ruled in favor of the plaintiffs. adverse possession standard for the second claim of right; (2) actual; (3) open and The Court explained that the plaintiffs had consecutive year (legislation was vetoed last notorious; (4) exclusive; and (5) continuous possessed the disputed parcel of land as early 4 August by then Governor Eliot L. Spitzer),1 for the required period of time, most recently, as 1986 in an open and notorious manner, 5 was reacting to two recent decisions finding 10 years. Given the significant impact of a hostile to the interests of the title owners in favor of claims of adverse possession, a finding of adverse possession, the courts had and continuously for 20 years, 10 of which June 2006 ruling by the New York Court of determined that it had to be proven by clear had occurred after the defendants had moved 6 Appeals, in Walling v. Przybylo,2 and an opinion and convincing evidence. into their residence. The Court pointed out by the Appellate Division, Third Department, This test was at the heart of Walling, an that it was not until April 21, 2004, close in November 2006, in Robinson v. Robinson.3 action to quiet title by adverse possession. The to 10 years after moving into the house and Although the new rules are likely to make case arose in January 1986, when the plaintiffs almost 15 years after purchasing the property, it more difficult for parties to obtain title to purchased lot 22 on Butternut Hill Drive in that the defendants sought to assert their property through adverse possession, whether the Town of Queensbury in upstate Warren rights over the disputed parcel. It then ruled they will limit—or encourage—litigation on County. In 1989, the defendants purchased that the defendants’ “failure to assert their this subject remains to be seen. lot 23. Both lots were unimproved land on rights in a timely manner” prevented them which the parties built homes and swimming from prevailing. The Prior Test pools. On lot 22, the plaintiffs also built a small The Court rejected the defendants’ shed. Even though the defendants purchased argument that no claim of right exists when an For many years, the law has been quite clear their land in 1989, they did not construct adverse possessor has actual knowledge of the their residence until 1991 and did not obtain true owner at the time of possession. However, Anthony S. Guardino is a partner at Farrell Fritz. a certificate of occupancy and move in until the Court said, “longstanding decisional law” He can be reached at [email protected]. May 1994. did “not support this position.” According NEW YorK Law JOURNAL WEDNESDAY, july 23, 2008 to the Court, the adverse possessor must act the statutory period rendered the plaintiffs’ Section 522 was where the land “has been under claim of right, which was adverse to possession nonexclusive. Similarly “irrelevant,” protected by a substantial inclosure.” Now, the title owner and also in opposition to according to the Third Department was the the word “inclosure” (which has been replaced the rights of the true owner. “Conduct will fact that the plaintiffs’ had not paid taxes on by “enclosure”) specifically excludes, in a new prevail over knowledge, particularly when the property during the relevant period, along Section 543 of the RPAPL, “the existence of the true owners have acquiesced in the with their “subjective belief” that someone de minimus non-structural encroachments exercise of ownership rights by the adverse else may have been the rightful owner of including, but not limited to, fences, hedges, possessors,” the Court declared. It then stated the property. shrubbery, plantings, sheds and non-structural that the issue was “actual occupation,” not Finally, the Third Department ruled that the walls,” which Section 543 says “shall be deemed subjective knowledge. plaintiffs’ “cultivation and improvement” of to be permissive and non-adverse.” the property through “mowing, maintenance For good measure, Section 543 also The ‘Robinson’ Ruling of the landing and campsites, storage and specifically states that “the acts of lawn mowing improvements” was consistent with the nature or similar maintenance across the boundary line The plaintiffs in Robinson, decided by of the land, i.e., its location on a riverbank of an adjoining landowner’s property shall be the Third Department several months after subject to natural fluctuation and the uses to deemed permissive and non-adverse.” Walling, sought to establish that they had which it was suited as a canoe rental business obtained title to an approximately 0.6 acre that had varying numbers of customers, and parcel of land, claiming that they had adversely Conclusion was “adequate to demonstrate possession under possessed the disputed parcel beginning in July The legislative history of the new law the circumstances.” 1987. Since that time and for a period of at indicates that the new test is “all about good least 10 years, the plaintiffs operated a seasonal faith.” It recognizes that the doctrine of adverse canoe rental and camping business on the The New Standard possession “should be used to settle good faith property. During the approximately five-month As signed into law, Senate Bill 7915-C disputes over who owns land” but should not season each year, the plaintiffs placed moveable contains a number of new provisions that create be “used offensively to deprive a landowner signage on the property, mowed the grass, a new standard for adverse possession. of” his or her real property.8 cleared debris, planted grass if it was washed First, Section 1 of the newly enacted law The legislative history also indicates that out by spring flooding, transported boats to amends Section 501 of the Real Property the new law rejects the Walling concept that the property, kept incidents of the business on Actions and Proceedings Law (“RPAPL”) to “conduct will prevail over knowledge”; now, the site throughout the season, and blocked define “adverse possessor” of real property as an adverse possessor can only acquire title if the use of the property by trespassers. Buses a person or entity that “occupies real property the occupancy exists under a “claim of right” dropped off customers during the season, at of another person or entity with or without in addition to an adverse, open and notorious, the peak of which up to 50 rafts, canoes and knowledge of the other’s superior ownership continuous, exclusive and actual occupancy. boats disembarked or landed on the property. rights, in a manner that would give the owner a Given the changes to the RPAPL, it seems In addition, the plaintiffs installed a road and cause of action for ejectment.” It then provides likely that if Walling and Robinson had been made rock fire-ring supports at two permanent that an adverse possessor gains title to the decided today, the results would have been campsites, which, along with several other sites occupied real property after 10 years7 provided different. It will be interesting to see the impact on an adjacent lot, were used and maintained that the occupancy was “adverse, under claim of the new law on future adverse possession on the property throughout the summer. of right, open and notorious, continuous, claims, and on the volume of litigation that Supreme Court, Sullivan County, entered exclusive, and actual.” Finally, the newly ultimately results. judgment in favor of the plaintiffs, concluding revised Section 501 defines “claim of right” that they had acceded to title to the disputed to mean “a reasonable basis for the belief that ••••••••••••••••••••••••••••• parcel by virtue of adverse possession. The the property belongs to the adverse possessor 1. For a discussion, see Jay Romano, “Adverse Possession: Mind Your Property,” (N.Y. Times Nov. 11, 2007), available defendant appealed. or property owner, as the case may be.” at http://www.nytimes.com/2007/11/11/realestate/11home.
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