WWW. NYLJ.COM VOLUME 250—NO. 61 WEDNESDAY, SEPTEMBER 25, 2013

ZONING AND LAND USE PLANNING

Adverse Possession By Anthony S. Of a Government’s Property Guardino

dverse possession is a well- owned by Brocho V’Hatzlocho Corpora- the surrounding suburban counties, all recognized method of gaining tion. The Metropolitan Transit Authority of its property—including the property title to property,1 with a long claimed ownership to property immedi- claimed by Brocho V’Hatzlocho—was history of court rulings in New ately adjacent to Brocho V’Hatzlocho’s integral to its transportation mission York, including a number by property. Brocho V’Hatzlocho asked the and should be deemed to be held by Athe New York Court of Appeals.2 More court to determine that it was the owner the MTA in a governmental capacity, than just a law school theory, adverse of the adjacent property by reason of rather than in a proprietary capacity, possession remains an alive and vibrant adverse possession. In response, the as a matter of law. doctrine; indeed, the New York Legis- MTA primarily contended that the law The court pointed out that the MTA lature saw fit just a few years ago to of adverse possession did not apply to was seeking to dispose of the property amend the law setting forth the standard it in this case because of its status as a claimed by Brocho V’Hatzlocho and that governing adverse possession.3 “public authority.”6 it had solicited proposals from prospec- It has long been established that a In its decision, the court explained tive purchasers. In the court’s view, the governmental entity cannot lose title to that a municipality cannot lose title immunity from adverse possession con- property by adverse possession when it through adverse possession to prop- ferred on certain governmental property holds the property in its governmental erty that it owned in its governmen- was based on the inalienability of prop- capacity.4 Nonetheless, courts frequent- tal capacity or that had been made erty dedicated to the public trust and ly are called on to resolve adverse pos- inalienable by statute. The court found not held for the purpose of sale or other session claims by a private individual or that this principle applied to the MTA disposition. Accordingly, it concluded, company seeking to acquire property by because it performed an “essential gov- the MTA had not established that the adverse possession from a government ernmental function.”7 disputed property was immune from or government entity. As reflected in the The court, however, rejected the adverse possession as a matter of law.8 recent decision by the Supreme Court, MTA’s argument that the rule meant that Capacity Bronx County, in Brocho V’hatzlocho all property to which the MTA held title Corp. v. Metropolitan Transportation was immune from adverse possession, In some instances it may be rather Authority,5 governments are not nec- explaining that when a municipality held clear when a government entity meets essarily immune from the effects of real property in its proprietary capacity, its burden9 to demonstrate that it holds adverse possession. there was no immunity against adverse property in a governmental capacity. The ‘MTA’ Case possession. It also refused to accept the For example, in Kings Park Yacht Club MTA’s argument that because it was a v. State of New York,10 the Appellate The MTA case involved real property public benefit corporation created by the Division, Second Department, upheld at 538 Johnson Ave. in Brooklyn that was legislature to develop and further public a decision by the Supreme Court, Suffolk transportation and implement a unified County, in favor of the State of New York mass transportation policy within the with respect to property located on the ANTHONY S. GUARDINO is a partner with Farrell Fritz in metropolitan commuter transportation grounds of the Kings Park Psychiatric the firm’s Hauppauge office.v district consisting of New York City and Center that was being used by the plain- WEDNESDAY, SEPTEMBER 25, 2013 tiff as a private yacht club. In rejecting noted that although the city’s admin- property was not held by the school the plaintiff’s adverse possession claim, istrative code provided that land the district in its governmental capacity. the court held that the state held the city acquired through in rem foreclosure Conclusion property in its governmental capacity proceedings was deemed to be held by for purposes of operating a mental hos- the city for a “public use,” this presump- The governmental-proprietary distinc- pital that, in fact, still was operating at tion applied only for a period of three tion seems quite well established in New the time that the plaintiff commenced years from the date of the final judg- York law, notwithstanding the 1988 deci- its adverse possession action. ment of foreclosure—and in this case sion by the Court of Appeals in Matter 14 In other instances, though, the issue the presumption of public use created of County of Monroe. In that case, the often may not be as clear. To assist in by the administrative code had expired court addressed the City of Rochester’s making this determination, courts have before the adverse possession proceed- imposition of its land use requirements suggested various indicia to consider. ing had been filed.12 on the County of Monroe, and held that Another Second Department case, Gal- the governmental-proprietary “label- lo v. City of New York, involved property ing device” should be replaced with Courts frequently are called on that the government had leased to pri- a “balancing of public interests” ana- vate entities who utilized it for commer- lytic approach. Despite that ruling, the to resolve adverse possession court nevertheless has continued to use claims by a private individual cial purposes. The Second Department nonetheless found that the government the governmental-proprietary analytic 15 or company seeking to acquire had established that despite the leases, approach in other areas, and numer- 16 property by adverse possession the property was held in a governmen- ous other courts —including the court in the MTA case—have continued to from a government or govern- tal capacity for the significant public purpose of monitoring leachate and the apply that distinction. Unless the Court ment entity. migration of landfill gas from the Fresh of Appeals were specifically to reject Kills Landfill, adding that the existence the governmental-proprietary test in For instance, in Casini v. Sea Gate of a private profit motive by the lessees adverse possession cases, it is likely Ass’n,11 a not-for-profit association did not preclude the operation of the to be the rule for the foreseeable future. argued that it had acquired ownership property from serving a public purpose. ••••••••••••••••••••••••••••• 1. Generally speaking, adverse possession requires that the by adverse possession of an elliptically- There also may be instances when possession be hostile and under claim of right, actual, open and notorious, exclusive, and continuous for a period of 10 shaped traffic island from New York City the government takes actions clearly years. See, e.g., Galchi v. Garabedian, 105 A.D.3d 700 (2d Dept. 2013). that the city had acquired through a tax inconsistent with its attempt to argue 2. See, e.g., Belotti v. Bickhardt, 228 N.Y. 296 (1920). foreclosure proceeding. The Supreme that it held property in a governmental 3. See Real Property Actions and Proceedings Law Article 5; see also Anthony S. Guardino, “Courts Reject Retroactivity Of Court, Kings County, ruled in favor of capacity. Monthie v. Boyle Road Associ- Adverse Possession Claims,” NYLJ, Nov. 28, 2012; Anthony S. Guardino, “Adverse Possession,” NYLJ, July 23, 2008. the association, and the Second Depart- ates,13 involved a portion of a 48-acre 4. See City of New York v. Wilson & Co., 278 N.Y. 86 (1938). 5. 40 Misc. 3d 1204(A) (Sup. Ct. Kings Co. 2013). ment affirmed. site that had been acquired by a school 6. See Public Authorities Law §1263. 7. See Public Authorities Law §1264(2). In its decision, the appellate court district. The district used only 19 acres 8. See, also, Man Yum Ng v. Metropolitan Transportation Au- thority, 17 Misc. 3d 1110(A) (Sup.Ct. Kings Co. 2007) (no immu- pointed to what it characterized as a of the complete site for school build- nity from adverse possession for MTA where land in question had not been used for any transportation function or govern- “well-recognized distinction” between ings, a playground, and athletic fields. mental function for decades). 9. See, e.g., Schwarz v. Trustees of Freeholders and Com- land held by the state as sovereign in Years after it had purchased the prop- monalty of Town of Huntington, 85 A.D.3d 1008 (2d Dept. 2011). 10. 26 A.D.3d 357 (2d Dept. 2006). trust for the public for a public pur- erty, it offered to sell the remaining 29 11. 262 A.D.2d 593 (2d Dept. 1999). 12. See, also, Albany Parking Services. v. City of Albany, 3 pose such as highways, public streams, acres. In a notice to bidders, the district A.D.3d 711 (3d Dept. 2004) (where use of disputed property for street purposes had been discontinued and the area there- canals, and public fair grounds and land described the site as “vacant land” and after was neither rededicated nor used for any other public purpose, Supreme Court, Albany County, had properly found held as a proprietor only, for the pur- noted that the land was zoned “Resi- it to be held in city’s proprietary capacity and subject to ad- pose of “sale or other disposition.” It dential-B1.” In a portion of the offering, verse possession claim). 13. 281 A.D.2d 15 (2d Dept. 2001). then found it significant that there was written on school district stationery, 14. 72 N.Y.2d 338 (1988). 15. See State NY ex rel. Grupp v. DHL Express (USA), 19 no record that the city had ever for- the district said that it was offering to N.Y.3d 278 (2012); World Trade Center Bombing Litig., 17 N.Y.3d 428 (2011); Karedes v. Colella, 100 N.Y.2d 45 (2003). mally dedicated the traffic island for a sell “vacant land” that was “no longer 16. See, e.g., Gallo v. City of New York, 51 A.D.3d 630 (2d Dept. 2008); Starner Tree Serv. v. City of New Rochelle, 271 public use or had used it for a public required for school purposes” and that, A.D.2d 681 (2d Dept. 2000); Casini v. Sea Gate Ass’n., 262 A.D.2d 593 (2d Dept. 1999). purpose. Moreover, the Second Depart- in fact, the property that it wanted to ment continued, the city was not pro- sell was “not being used.” The appellate Reprinted with permission from the September 25, 2013 edition of the NEW YORK LAW hibited by any statute from alienating court then upheld the decision by the JOURNAL © 2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm. the property. The appellate court also Supreme Court, Suffolk County, that the com. # 070-09-13-32