Adverse Possession Under The 2008 Amendments

Adverse Possession Defined: Old Law
To establish adverse possession, the following five
elements must be proved: Possession must be:
1. Hostile and under a claim of right
2. Actual
3. Open and notorious
4. Exclusive
5. Continuous for the required period (10 years)
▫ Belotti v. Bickhardt, 228 N.Y. 296, 302 (N.Y. 1920)
2

Under the new law, the requirements under the old
law still exist. However, the amendments have
more narrowly defined what qualifies as actual
possession and what constitutes possession under
a claim of right.
▫ NY CLS RPAPL § 501
3
Adverse Possession Defined: New Law

Statute of Limitations for Adverse
Possession
Remains the same under the new law
NY CLS CPLR § 212
Possession necessary to recover real property. An
action to recover real property or its possession
cannot be commenced unless the plaintiff, or his
predecessor in interest, was seized or possessed of
the premises within ten years before the
commencement of the action.
4

NY CLS RPAPL § 512
Essentials of adverse possession under written
instrument or judgment
“… land is deemed to have been possessed and occupied in any of the
following cases:
1. Where there has been acts sufficiently open to put a reasonably
diligent owner on notice.
2. Where it has been protected by a substantial enclosure, except as
provided in subdivision one of section five hundred forty-three of
this article.
3. Where, although not enclosed, it has been used for the supply of fuel or of
fencing timber, either for the purposes of husbandry or for the ordinary use
of the occupant.”
5
Amendments to Actual Possession Requirement

NY CLS RPAPL § 522
Essentials of adverse possession not under written
instrument or judgment
Land is deemed to have been possessed and occupied only:
1. Where there have been acts sufficiently open to
put a reasonably diligent owner on notice.
2. Where it has been protected by a substantial
enclosure, except as provided in subdivision
one of section five hundred forty-three of this
article.
6
Amendments to Actual Possession Requirement

NY CLS RPAPL § 543
Adverse possession; how affected by acts across a
boundary line
1. … the existence of de minimus [de minimis] non-structural
encroachments including, but not limited to, fences, hedges,
shrubbery, plantings, sheds and non-structural walls, shall
be deemed to be permissive and non-adverse.
2. … the acts of lawn mowing or similar maintenance across
the boundary line of an adjoining landowner's property shall
be deemed to be permissive and non-adverse.
7
Adverse Possession Defined: The New Law
Amendments to the Actual Possession Requirement
Specific Exceptions

Claim of Title
Under the old law, knowledge that rightful title belongs to another did
not defeat a claim of right.
Walling v. Przybylo, 7 N.Y.3d 228 (N.Y. 2006)
Claim of Right
NY CLS RPAPL § 501(3)
Under the new law, a claim of right means a reasonable basis for
the belief that the property belongs to the adverse possessor
or property owner, as the case may be.
Notwithstanding any other provision of this article, claim of right shall
not be required if the owner or owners of the real property throughout
the statutory period cannot be ascertained in the records of the county
clerk, or the register of the county, of the county where such real
property is situated, and located by reasonable means.
8
Claim of Title (Old Law) vs.
Claim of Right (New Law)

Walling v. Pryzbylo
Seminole case that prompted the legislature to
amend the adverse possession statute and define a
“claim of right.”

In Walling v. Przybylo, the Wallings and the Przybylos
owned adjoining properties. The Wallings began using a
portion of the Przybylos’ property as their own.
• Bulldozed and deposited fill and topsoil on disputed property
• Dug a trench and installed pipes for the purpose of carrying water to and under the
disputed parcel, ultimately discharging the water in and over the disputed parcel.
• Constructed an underground dog wire fence to enclose their dog and continuously
mowed, graded, raked, planted, and watered the grassy area in dispute.
• Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of
the pipeline.
• Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the
Wallings near the northwesterly corner of the grassy part of the disputed territory.
• Since 1992, the post and birdhouse have remained in place.
▫ Walling v. Przybylo, 7 N.Y.3d 228, 230-231 (N.Y. 2006)
◦ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession Changes Make Result Less Certain,
2009 The New York L. J., Feb. 11, 2009 at (2009).
10

In 2004, the Przybylos discovered that they had title
to the portion of the land that the Wallings had been
using. The Wallings filed suit to quiet title. The
Przybylos attempted to prove that Wallings knew they
did not own the disputed parcel.
Holding: The Court of Appeals held for the Wallings
and declared that “actual knowledge that another
person is the title owner does not, in and of itself,
defeat a claim of right by an adverse possessor.”
▫ Walling v. Przybylo, 7 N.Y.3d 228 (N.Y. 2006)
◦ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession Changes
Make Result Less Certain, 2009 The New York L. J., Feb. 11, 2009 at
(2009).
11

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15

16

17

Claim of Title vs. Claim of Right
The 2008 amendments removed the term “claim
of title” from every instance which it appeared
throughout the adverse possession statute.
The term “claim of title” was replaced with the
term “claim of right”
18

Claim of Right
The 2008 Amendments went on to specifically
define “Claim of Right” as having “a reasonable
basis for the belief that the property belongs to
the adverse possessor or the property owner as the
case may be.” RPAPL 501(3)
19

Claim of Title vs. Claim of Right
As a result, no person may now acquire title to
land by adverse possession without showing a
claim of right to the land founded on a
“reasonable basis for the belief that the
property belongs to the adverse
possessor.”
▫ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession
After the 2008 RPAPL Amendments, 2010 The New York L.J., Oct.
13, 2010 at (2010)
20

Calder v. 731 Bergan, LLC
83 A.D.3d 758 (N.Y. App. Div. 2d Dep't 2011)
Belief that the Government Sold Adverse
Possessor Disputed Land
Plaintiffs sought to establish a claim of right over
a certain disputed property. Plaintiffs sought to
establish a reasonable basis for their claim of right
by submitting an affidavit of one of the plaintiffs
stating that they were advised that they owned the
disputed property when they purchased the
property from the United States Secretary of
Housing and Urban Development in 1974.
21

Calder v. 731 Bergan, LLC (Cont.)
Relying on the Government
Citing the new law, the Appellate Division found
that the plaintiffs affidavit stating their reliance
was based on an assurances from a governmental
agency was sufficient to establish a “reasonable
basis for the belief that the property belongs to an
adverse possessor”
▫ Calder v 731 Bergan, LLC, 83 A.D.3d 758, 759 (N.Y. App. Div. 2d
Dep't 2011)
22

Ziegler v. Serrano
Adverse Possession Pursuant to a Mistaken Deed
“Their continued possession of the property since
1985 under the [mistaken] deed … provided
plaintiffs with a reasonable basis to believe
that they owned the property.” (citing RPAPL
501[3] as amended)
▫ Ziegler v Serrano, 74 A.D.3d 1610, 1612 (N.Y. App. Div. 3d Dep't
2010)
23

Actual Possession Under the New Law
“De minimus encroachments”
The 2008 Amendments more strictly defined the type
of possession sufficient to uphold a claim of adverse
possession.
A person or entity is an "adverse possessor" of real
property when the person or entity occupies real
property of another person or entity with or without
knowledge of the other's superior ownership rights, in
a manner that would give the owner a cause
of action for ejectment.
• RPAPL 501(1)
24

The statute went further to limit the kinds of acts which
rise to a “manner that would give the owner a cause of
action for ejectment” by specifically excluding certain
common actions as “de minimus” and “non adverse”
1. “…the existence of de minimus [de minimis] non-
structural encroachments including, but not
limited to, fences, hedges, shrubbery, plantings,
sheds and non-structural walls, shall be deemed
to be permissive and non-adverse.”
2. “…the acts of lawn mowing or similar
maintenance across the boundary line of an
adjoining landowner's property shall be deemed
permissive and non-adverse.”
▫ NY CLS RPAPL § 543
25

Hartman v. Goldman
The First Case Using the New Law

The First Case Using the New Law
• Section 9 of the Amendments states that the new law
“shall take effect immediately, and shall apply to
claims filed on or after such effective date.”
• However, Courts have recognized that where adverse
possession rights have vested prior to the amendments,
the old law should still apply.
• In Hartman v. Goldman, the alleged adverse possession
rights would have vested prior to the enactment of the
amendments.
• However, due to clever lawyering, defendant’s attorneys
were able to get the plaintiff to stipulate that the new law
applied, and the court did not disturb their stipulation.
27

28

29

30

31

32

Hartman v. Goldman, 84 A.D.3d 734
(N.Y. App. Div. 2d Dep't 2011)
“Under the plain terms of RPAPL 543 as amended, the
plaintiffs' plantings of foliage and shrubbery, and
landscaping and lawn maintenance are de minimis
and deemed permissive and non-adverse (see Sawyer
v Prusky, 71 AD3d 1325, 1327, 896 NYS2d 536
[2010]). Further, the driveway lights installed by the
plaintiffs, which are approximately four feet high and
six inches in diameter, are also governed by RPAPL
543, which applies to all de minimis, non-structural
encroachments "including, but not limited to," those
expressly listed in the statute.”
▫ Hartman v Goldman, 84 A.D.3d 734, 736 (N.Y. App. Div. 2d Dep't 2011)
33

Plaintiff’s action would be time barred if the right
of way was extinguished by adverse possession.
The court noted that the 8 foot wide hedge is not
necessarily “de minimus” under the newly enacted
RPAPL 543(1) simply because “hedges” are
specifically excluded.
34
8 Foot Wide Hedge
Wright v. Sokoloff, 110 A.D.3d 989 (N.Y. App. Div. 2d Dep't 2013)

• “The plaintiff contends that pursuant to RPAPL 543 (1), the existence of all
encroaching hedges and shrubbery, no matter how large, shall be deemed
permissive and non-adverse. Under the plaintiff's interpretation of the
statute, the list of examples contained in RPAPL 543 (1) are examples of "de
[minimis] non-structural encroachments." We reject this interpretation.”
• “The more reasonable interpretation of RPAPL 543 (1) is that the list
contains examples of "non-structural encroachments" which could still
be adverse if they are not de minimis. This reading gives effect to the
words "de [minimis]," while the plaintiff's interpretation would render
those words superfluous.”
• However, the Court held that because the hedge could be considered “de
minimis” under the new law, a triable issue of fact existed as to whether the
defendants had extinguished the right of way by adverse possession. As a
result, Defendant’s summary judgment motion should have been denied.
▫ Wright v Sokoloff, 110 A.D.3d 989, 990-991 (N.Y. App. Div. 2d Dep't 2013)
35
De Minimis
Wright v. Sokoloff, 110 A.D.3d 989 (N.Y. App. Div. 2d Dep't 2013)

Application of the New Law
Section 9. This act shall take effect
immediately, and shall apply to claims filed
on or after such effective date.
Laws 2008, ch 269, § 9, eff July 7, 2008
Should the new law be applied to claims which are
filed after the effective date of the amendments, but
which deal with property rights that would have
allegedly vested by adverse possession before July
7th, 2008?
36

The Court of Appeals
The Court of Appeals has not yet decided a case
where the claim was filed after the amendments
effective date but where title by adverse
possession allegedly vested prior to the
amendment’s enactment.
37

Plaintiff’s commenced an action for adverse
possession in 2005 where alleged adverse
possession rights would have vested in 1973.
38
Court of Appeals
Estate of Becker v. Murtagh, 19 N.Y.3d 75
(N.Y.1012)

Footnote 4:
“The 2008 amendments are not applicable
to the instant appeal because Mr. Becker's
title vested (by adverse possession), and
this action was instituted, before the
effective date of the amendments.”
39
Court of Appeals
Estate of Becker v. Murtagh, 19 N.Y.3d 75
(N.Y.1012)

The Appellate Divisions
The four Appellate Divisions have come to
contrary conclusions as to the application of the
new law to claims filed after the effective date of
the amendments but which affect rights allegedly
vested prior to their enactment.
40

With respect to claims filed after enactment of the
amendments:
• No cases decided by the First Department have relied on
the adverse possession statute
• 13 cases decided by the Second Department have applied
the old law and 3 have applied the new law and 1 cited
the new law but did not discuss its application
• 5 cases decided by the Third Department have applied
the old law and 2 have applied the new law and 1 cited
the new law but did not discuss its application
• 4 cases decided by the Fourth department have applied
to old law and none have applied the new law
41
The Appellate Divisions

First Department
The First Department has yet to decide a case which
relies on the Adverse Possession Statute since the
2008 Amendments have gone into effect.
42

Every adverse possession case brought by the
Fourth Department has held that where the title
would have vested by the alleged adverse
possession prior to the effective date, the old law
will apply, regardless of whether the claim was
filed after the effective date of the Amendments.
43
Fourth Department
Consistent Decisions:
All decisions follow Franza v. Olin

Franza v. Olin
73 A.D.3d 44 (N.Y. App. Div. 4th Dep’t 2010)
Fourth Department
• This was the first appellate decision to rule on the
retroactive application of the 2008 amendments
to the adverse possession statute. The Court did
not apply the new law.
• The Court reasoned that although the claim was
filed six weeks after the enactment of the
Amendments, title would have vested in the
adverse possessor before the enactment of the
Amendments. As a result, deciding the case under
the new law was unconstitutional because it would
deprive the plaintiff of her vested property rights.
44

• It is well-settled law that the adverse possession of
property for the statutory period vests title to the
property in the adverse possessor.
• "[A]dverse possession for the requisite period of time not
only cuts off the true owner's remedies but also divests
[the owner] of his [or her] estate"
• Thus, at the expiration of the statutory period, legal title
to the land is transferred from the owner to the adverse
possessor
• Title to property may be obtained by adverse possession
alone, and "[t]itle by adverse possession is as strong as
one obtained by grant"
▫ Franza v. Olin, 73 A.D.3d 44 (N.Y. App. Div. 4th Dep’t 2010)
45
Franza v. Olin (Cont.)
Fourth Department

“It therefore follows that, where title
has vested by adverse possession, it
may not be disturbed retroactively by
newly-enacted or amended
legislation.”
46
Fourth Department

The Court then analyzed plaintiff’s acts of mowing
and maintaining the lawn, and the erecting certain
structures under the old law. Consequentially,
adverse possession was found to have been
established.
47
Fourth Department

• The Second Department has come to different conclusions on
whether to apply the old law or new law when rights have
allegedly vested before the amendments enactment.
• 4 adverse possession cases decided since enactment of the
Amendments mention the new law.
• Two of these cases decided by the Second Department have
expressly applied the new law regardless of when rights had
vested.
• One case of these cases decided by the Second Department
applied the new law because both the filing of the claim and
the alleged vesting of title occurred after July 7th, 2008.
• One of these cases applied the both the old law and the new
law despite the court not stating how the plaintiff satisfied the
new law’s additional requirement that the claim of right be
based on a reasonable basis.
48
Second Department

Second Department
Cases which have applied the new law
▫ Hartman v. Goldman, 84 A.D.3d 734 (N.Y. App. Div. 2d
Dep't 2011)
 The new law was applied where, due to clever lawyering, although
rights would have allegedly vested prior to the amendments, both
parties stipulated that the new law would apply.
▫ Calder v. 731 Bergan, LLC, 83 A.D.3d 758 (N.Y. App. Div.
2d Dep't 2011)
 The new law was applied where, even though rights would have
allegedly vested prior to enactment of the amendments, analysis
under the Adverse Possession Statute as it was prior to the
amendments would not have yielded a different result.
▫ Wright v. Sokoloff, 110 A.D.3d 989 (N.Y. App. Div. 2d
Dep't 2013)
 The Court applied the new law where both the commencement of
the action and the alleged vesting of title occurred after the
enactment of the amendments.
49

Although the case was commenced in 2009,
property rights would have allegedly vested prior
to the enactment of the 2008 Amendments. The
court discussed both the old and the new law, and
analyzed the facts under both, stating that the
result would have been the same in either
instance. However, the court did not mention
how the plaintiff’s had satisfied the new
requirement that a claim of right be founded
upon a reasonable basis.
50
Maya's Black Cr., LLC v Angelo Balbo Realty Corp.
Second Department

The Court noted the Fourth Departments decision
that “the law in effect at the time that the
purported adverse possession allegedly ripened”
should apply, but stated “we need not reach this
issue decided by the Fourth Department in Franza
v. Olin because the complaint states a cause of
action under both the law as it exists today and
the law as it existed prior to July 7, 2008.”
51
Maya's Black Cr., LLC v Angelo Balbo Realty Corp.
Second Department

Third Department
The Third Department has also come to different
conclusions on this issue.
Two cases applied the new law regardless of when
the alleged rights would have vested.
One case cited to the new law but did not discuss
its application.
52

Third Department
Two cases decided by the Third Department expressly apply the 2008
Amendments in their decision.
▫ Ziegler v. Serrano, 74 A.D.3d 1610 (N.Y. App. Div. 3d Dep't 2010)
 In a case started in September of 2008, the Third Department applied the
new law, and found adverse possession pursuant to a 1985 deed which
would have vested title in the adverse possessors in 1995.
 The new law was applied because neither of the litigants mentioned that
the old law may be applied. Therefore, the Court applied the new law
despite recognizing that the title would have vested prior to 2008.
▫ Sawyer v. Prusky, 71 A.D.3d 1325 (N.Y. App. Div. 3d Dep't 2010)
 In an action commenced in September of 2008, where the alleged acts of
adverse possession occurred “between 1997 and 2008,” the Court applied
the new law without hesitation to find the disputed rock wall to be “de
minimis” and “non-adverse.” As a result, plaintiffs’ claim for adverse
possession was dismissed.
▫ Comrie, Inc. v Lake Ave., Inc., 86 A.D.3d 856 (N.Y. App. Div. 3d Dep't
2011)
 Plaintiff’s argument that he had title by adverse possession failed where
prior, failed attempts to establish adverse possession negated plaintiff’s
claim of right, citing RPAPL 501(3) but not discussing the “reasonable
basis” requirement.
53

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Adverse Possession Under The 2008 Amendments

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