Adverse possession is a legal concept that allows someone who is not the legal owner of a piece of land to eventually gain ownership rights to that land through continuous, open, and exclusive possession of it for a specific period of time.
For actual landowners, the idea that someone else could eventually gain ownership of their land simply by occupying it can be unsettling and even unfair.
This article will discuss the element necessary to gain title to someone else’s land in New York by adverse possession and, more importantly, how to prevent this from happening to your land.
The Elements of Adverse Possession in New York
A party who seeks to establish title to real property by adverse possession in New York must prove that he possessed the land and that his possession was (1) hostile under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous and uninterrupted for a period of ten years.” (See RPAPL § 501 (2), Civil Practice Law & Rules § 212 and Hogan v. Kelly, 86 A.D.3d 590 (2011)).
Not proving even one of these elements will defeat an adverse possession claim.
Here is what the courts in New York have said about each one of the elements necessary to establish adverse possession:
1. Hostile Under a Claim of Right
“Hostile” doesn’t mean aggressive or confrontational. Instead, it refers to the nature of the adverse possessor’s possession in relation to the true owner’s rights.
A possession is considered “hostile” when the adverse possessor occupies the property without the true owner’s permission or legal right to do so.
Hostile possession occurs when the adverse possessor occupies the property with the intention of asserting ownership rights that are adverse to the true owner’s rights.
“Claim of Right“
In 2008, New York passed a law to make it more difficult for a person to claim ownership of property by adverse possession.
Under the 2008 statute in New York, for adverse possession to be claimed, the possessor must demonstrate a “claim of right.”
This means that the person adversely possessing the property must believe in good faith that they have a legal basis to do so, such as through a deed or other legal instrument, even if their belief is ultimately incorrect.
This legal requirement aims to prevent opportunistic or unjustified claims of adverse possession and ensures that the person claiming possession genuinely believes they have a right to the property. (See N.Y. Real Prop. Acts § 501).
In New York, “actual possession” in the context of adverse possession refers to a person physically occupying and using a property as if they were the true owner of the land. This involves treating the property as their own, making improvements, and using it as a typical owner would.
3. Open and Notorious
“Open” means that the possession should be readily observable and evident to anyone with an ownership interest in the land. It should not be conducted in secret or behind closed doors.
The open element requires that the possessor’s actions are visible and conducted in a way that doesn’t try to obscure or conceal the assertion of ownership over the property.
“Notorious” refers to the requirement that the adverse possessor’s occupation and use of the property are conducted in a manner that is well-known, widely recognized, or commonly understood within the local community or among those with an ownership interest in the property.
Possession of land is considered “notorious” when it is conducted openly, visibly, and in a manner that would make it widely known to neighbors, passersby, and others who might have an interest in the land.
It goes beyond mere visibility; it means that the possessor’s actions are so evident and public that they become a matter of general knowledge or common awareness.
For example, if someone builds a structure on a piece of land, plants a garden, and uses the land as their own for many years without attempting to hide these activities, their possession could be deemed “notorious.”
This means that their actions are so conspicuous and well-known that people in the community know their use and occupancy of the property.
The “exclusive” possession requirement means that the adverse possessor must have sole control and use of the property, excluding others, including the true owner.
This means that the adverse possessor’s possession of the property should not be shared with or interfered with by anyone else.
In other words, the adverse possessor should demonstrate that they are the primary and dominant user of the property during the period required for adverse possession to be established.
They should use the property as if they were the rightful owner, without the true owner’s active presence or consent.
This “exclusive” possession requirement helps establish that the adverse possessor’s use of the property is serious and substantial, reflecting a genuine belief in their claim to the property.
It also emphasizes that the true owner’s rights have been set aside due to the adverse possessor’s continuous and unshared use.
5. Continuous For a Period of Ten Years
“Continuous for ten years” refers to the period of time during which the adverse possessor must openly, notoriously, and exclusively occupy and use the property without interruption or abandonment for a continuous span of 10 years.
The adverse possessor’s occupation of the property must be ongoing and without significant gaps. This means that they consistently use and treat the property as their own without substantial breaks in their possession.
The possession should not be disrupted or interrupted by actions from the true owner or other parties that would break the continuity of the possession.
The continuity requirement will be defeated when the adverse possessor interrupts the period of possession by abandoning the premises, where an intruder’s presence renders the possession nonexclusive, or where the record owner acts to eject the adverse possessor. (See Beutler v Maynard, 80 AD2d 982, 983).
The 10-year period begins when the adverse possessor’s possession becomes hostile, open, notorious, exclusive, and continuous. (See Civil Practice Law & Rules § 212).
There does not need to be ten years of continuous possession by the same person. Ordinarily, an adverse possessor can take advantage of the periods of adverse possession by his predecessor.
Separate periods of adverse possession may be “tacked” together to make up the entire ten-year period with the result that the final adverse possessor gets title to the land.
Who Has The Burden To Prove Adverse Possession in New York?
In New York, the burden of proof for adverse possession falls on the party claiming adverse possession.
This means that the person seeking to acquire ownership of a property through adverse possession must provide evidence and prove all the elements of adverse possession to make their claim successfully.
The burden of proof refers to the responsibility of showing that the facts of the case meet the legal requirements for adverse possession.
In addition, in New York, the burden of proof for adverse possession cases is “clear and convincing evidence.” This standard is higher than the preponderance of the evidence standard used in most civil cases.
“Clear and convincing evidence” means that the evidence presented by the adverse possessor must be highly and substantially more likely to be true than not.
It requires a higher degree of certainty than the preponderance of the evidence standard.
Since the acquisition of title to land by adverse possession is not favored under the law (Belotti v Bickhardt, 228 N.Y. 296, 308), these elements must be proven by clear and convincing evidence (Van Valkenburgh v Lutz, 304 N.Y. 95, 98).
This standard ensures that the claimant’s assertion of adverse possession is supported by strong, convincing, and credible evidence.
Does a Person Have to Pay Taxes to Acquire Adverse Possession?
New York does not require the adverse possessor to pay taxes on the property. However, payment of property taxes is good evidence of adverse possession.
Government Land That Cannot Be Adversely Possessed in New York
A person cannot gain title to any government-owned land by adverse possession in New York.
Strategies to Safeguard Your Property Against Adverse Possession
Avoiding adverse possession of your property involves taking proactive measures to protect your ownership rights and prevent others from acquiring legal ownership through continuous and open use.
Here are some strategies to consider:
- Regular Property Inspections: Regularly inspect your property to ensure no one uses it without your permission. This will help you identify any potential adverse possession claims early on.
- Clear Boundaries: Mark the boundaries of your property with fences, walls, or other visible markers. This can help prevent encroachments and clarify where your property lines lie.
- Communication: If you become aware of someone using your property, communicate with them in writing to assert your ownership rights and ask them to stop. This establishes a record of your efforts to prevent adverse possession.
- Property Tax Payments: Continuously pay property taxes on time. Failure to pay property taxes can weaken your claim to the property and make it easier for someone else to claim adverse possession.
- No Permission: Do not grant permission for others to use your property in a way that might be construed as allowing them to gain ownership. Any permissive use can weaken your defense against an adverse possession claim.
- Document Everything: Keep records of property surveys, deeds, property tax payments, and any communication with individuals using your property without permission. These records can be crucial evidence if a dispute arises.
- Lease Agreements: If you allow someone to use your property temporarily, create a written lease agreement that explicitly states their lack of ownership rights and specifies the duration of use.
- Regular Use: Continue using your property regularly. Regular, consistent use helps demonstrate your active ownership and can undermine any adverse possession claims.
- Legal Action: If you become aware of a potential adverse possession claim, consult a real estate attorney to discuss your options. Taking legal action early on can help protect your ownership rights.
- Post Warning Signs: If applicable, post signs indicating your property ownership. While not foolproof, this can discourage individuals from attempting adverse possession.
- Negotiation: If you discover someone is using your property without permission, consider negotiating an agreement that reaffirms your ownership while allowing them to use the property under certain conditions.
- Land Use Agreements: If you know someone using your property, you can create a land use agreement outlining their use while reaffirming your ownership. This agreement can help prevent adverse possession claims.
I strongly recommend seeking legal advice from an experienced real estate attorney in New York if you have any concerns related to adverse possession. An attorney’s expertise will provide clarity on local laws, the feasibility of your claim, and the potential risks involved.