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Home Law in the News RECENT CHANGES TO THE ADVERSE POSSESSION STATUTES
RECENT CHANGES TO THE ADVERSE POSSESSION STATUTES Print E-mail

In July, 2008, New York State Governor Patterson signed into law S.7915-C/A.11574-A, changing the statutory requirements for adverse possession.  The act takes effect immediately and applies to all claims of adverse possession filed subsequently thereto.
 
According to sponsor Senator Little’s memorandum, this bill reflects the policy that: "Adverse possession should be used to settle good faith disputes over who owns land.  It should not be a doctrine which can be used offensively to deprive a landowner of their real property.  That only encourages mischief between neighbors and even between families.  No good can come of it.  This is an incentive which must be curtailed."

The amended law places several enhanced and more stringent requirements upon adverse possession claims.  One of the most significant changes is the addition of RPAPL § 543, which sets forth that “the existence of de minimus 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,” and that “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.”

Also, rather than a “Claim of Title,” an adverse possessor must have a “Claim of Right,” which is defined in RPAPL section 501 as “a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be.”
 
The “usually cultivated or improved” standard in RPAPL sections 512 and 522 has been changed to require “acts sufficiently open to put a reasonably diligent owner on notice.”  The amended statute does not define “sufficiently open” acts, so the courts may fall back on the old “cultivated or improved” standard.  The “substantial enclosure” requirement of those sections has been limited by RPAPL section 543 described above.
 
The text of the Bill is set forth below for practitioners to examine and draw their own conclusions from.  Text in ALL CAPS is new; text in {brackets} is old law to be omitted.

1.  Section 501 of the real property actions and proceedings law, as added by chapter 312 of the laws of 1962, is amended to read as follows:

S 501.  {Action after entry.  An entry upon real property is not sufficient or valid as a claim unless an action is commenced thereupon within one year after the making thereof and within ten years after the time when the right to make it descended or accrued.} ADVERSE POSSESSION; DEFINED.  FOR THE PURPOSES OF THIS ARTICLE:

1.  ADVERSE POSSESSOR.  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.

2.  ACQUISITION OF TITLE.  AN ADVERSE POSSESSOR GAINS TITLE TO THE OCCUPIED REAL PROPERTY UPON THE EXPIRATION OF THE STATUTE OF LIMITATIONS FOR AN ACTION TO RECOVER REAL PROPERTY PURSUANT TO SUBDIVISION (A) OF SECTION TWO HUNDRED TWELVE OF THE CIVIL PRACTICE LAW AND RULES, PROVIDED THAT THE OCCUPANCY, AS DESCRIBED IN SECTIONS FIVE HUNDRED TWELVE AND FIVE HUNDRED TWENTY-TWO OF THIS ARTICLE, HAS BEEN ADVERSE, UNDER CLAIM OF RIGHT, OPEN AND NOTORIOUS, CONTINUOUS, EXCLUSIVE, AND ACTUAL.

3.  CLAIM OF RIGHT.  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.

2.  Section 511 of the real property actions and proceedings law, as added by chapter 312 of the laws of 1962, is amended to read as follows:

S 511.  Adverse possession under written instrument or judgment.  Where the occupant or those under whom {he} THE OCCUPANT claims entered into the possession of the premises under claim of {title} RIGHT, exclusive of any other right, founding the claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and there has been a continued occupation and possession of the premises included in the instrument, decree or judgment, or of some part thereof, for ten years, under the same claim, the premises so included are deemed to have been held adversely; except that when they consist of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot.

3.  Section 512 of the real property actions and proceedings law, as added by chapter 312 of the laws of 1962, is amended to read as follows:S 512.  Essentials of adverse possession under written instrument or judgment.  For the purpose of constituting an adverse possession {by a person claiming a title}, founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in {either} ANY of the following cases:

 1.  Where {it has been usually cultivated or improved} THERE HAS BEEN ACTS SUFFICIENTLY OPEN TO PUT A REASONABLY DILIGENT OWNER ON NOTICE.

 2.  Where it has been protected by a substantial {inclosure} ENCLOSURE, EXCEPT AS PROVIDED IN SUBDIVISION ONE OF SECTION FIVE HUNDRED FORTY-THREE OF THIS ARTICLE.

 3.  Where, although not {inclosed} 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.  Where a known farm or a single lot has been partly improved, the portion of the farm or lot that has been left not cleared or not {inclosed} ENCLOSED, according to the usual course and custom of the adjoining country, is deemed to have been occupied for the same length of time as the part improved and cultivated.

4.  Section 521 of the real property actions and proceedings law, as amended by chapter 116 of the laws of 1965, is amended to read as follows:

S 521.  Adverse possession {under claim of title not written} NOT UNDER WRITTEN INSTRUMENT OR JUDGMENT.  Where there has been an actual continued occupation of premises under a claim of {title} RIGHT, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely.
 
5.  Section 522 of the real property actions and proceedings law, as added by chapter 312 of the laws of 1962, is amended to read as follows:

S 522.  Essentials of adverse possession {under claim of title not 52 written} NOT UNDER WRITTEN INSTRUMENT OR JUDGMENT.  For the purpose of constituting an adverse possession {by a person claiming title} not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others:

 1.  Where {it has been usually cultivated or improved} THERE HAVE BEEN ACTS SUFFICIENTLY OPEN TO PUT A REASONABLY DILIGENT OWNER ON NOTICE.

 2.  Where it has been protected by a substantial {inclosure} ENCLOSURE, EXCEPT AS PROVIDED IN SUBDIVISION ONE OF SECTION FIVE HUNDRED FORTY-THREE OF THIS ARTICLE.

6.  Section 531 of the real property actions and proceedings law, as amended by chapter 375 of the laws of 1975, is amended to read as follows:

S 531.  Adverse possession, how affected by relation of landlord and tenant.  Where the relation of landlord and tenant has existed {between any persons}, the possession of the tenant is deemed the possession of the landlord until the expiration of ten years after the termination of the tenancy; or, where there has been no written lease, until the expiration of ten years after the last payment of rent; notwithstanding that the tenant has acquired another title or has claimed to hold adversely to his landlord.  But this presumption shall cease after the periods prescribed in this section and such tenant may then commence to hold adversely to his landlord.

7.  Section 541 of the real property actions and proceedings law, as amended by chapter 375 of the laws of 1975, is amended to read as follows:

S 541.  Adverse possession, how affected by relation of tenants in common.  Where the relation of tenants in common has existed {between any persons}, the occupancy of one tenant, personally or by his servant or by his tenant, is deemed to have been the possession of the other, notwithstanding that the tenant so occupying the premises has acquired another title or has claimed to hold adversely to the other.  But this presumption shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, personally or by his servant or by his tenant, or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his cotenant.

8.  The real property actions and proceedings law is amended by adding a new section 543 to read as follows:S 543.  ADVERSE POSSESSION; HOW AFFECTED BY ACTS ACROSS A BOUNDARY LINE. 

1.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, THE EXISTENCE OF DE MINIMUS 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. NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, 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.

9.  This act shall take effect immediately, and shall apply to claims filed on or after such effective date.
 

 

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