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  • Taub and Bogaty

Adverse Possession

While new construction is happening all over Long Island, many homes and neighborhoods have been around for quite some time. Long Island saw a significant increase in population just after World War 2 when Abraham Levitt and Sons designed and built a planned community in Nassau County in 1947 and sold these homes to veterans returning from the war.

More than 70 years later, most of these homes have been bought and sold several times, and most houses have had significant work done. Some of this work includes putting up new fences around the property, building sheds, planting or removing trees, and even adding on to the house, increasing the original footprint of the building.

Over the years, many changes, most of which were done without the aid of a site survey, were done without regard to boundary lines, so new fences were placed in the wrong place, or sheds were built straddling the line onto a neighbor’s property. A common conversation between neighbors includes things like, “is this fence too far over on my side?” or “I think your shed is partially on my property. This can lead to adjustments being made, many times making the situation worse. Often the problem is ignored, or both neighbors shrug it off. Other times a boundary dispute can lead to anger and animosity between neighbors, even neighbors who had been friends. Often, ignored and forgotten situations come back when one of the homes is sold. Then someone gets a knock on the door by the new neighbor demanding that their fence or shed be moved off their property.

In some cases, if very specific criteria are met, the person who is in possession of the property may petition the court to be able to retain the property they have already been using.

The situation mentioned above, where both homeowners are aware of the situation, would not meet the criteria for Adverse Possession. Adverse Possession allows an individual who has been using real property for a certain amount of time and in a specific way to bring an action to claim title to said property.

To claim adverse possession, the use of the land must be:

  • Hostile (against the right of the true owner and without permission)

  • Actual (exercising control over the property)

  • Exclusive (in possession of the trespasser alone)

  • Open and notorious (using the property as the real owner would, without hiding his or her occupancy), and

  • Continuous for the statutory period

Claiming Adverse Possession is very difficult to do in New York. The most challenging part is meeting the criteria for “hostility.” A person claiming Adverse Possession must prove that they had a reasonable belief that the land they used was theirs to use. While proving what a person believes can be extremely difficult, this caveat was added to avoid having a person begin to use a piece of land to claim ownership through Adverse Possession.

There are also limits on how the land is used to be able to claim Adverse Possession. If a person builds a shed or some sort of permanent structure on a piece of land they truly believed was their land to build on, and the actual owner of the property never asked that the structure be moved or a rental agreement for the space be set up, then after the 10 year period, the owner of the structure may be able to petition the court to be named as the actual owner of the property.

The point here is that a structure was built upon the land and was in continuous, obvious, unconfronted use for more than ten years. The New York Legislature included a provision in the law regarding “non-structural encroachments.” A person cannot use shrubbery, flowers, a vegetable garden, or the like as the reason for obtaining ownership through Adverse Possession.

Buying a home, especially for the first time, can be stressful. Things can get even more stressful if your first meeting with a new neighbor concerns a property line dispute.

Regarding these disputes, it is often better to negotiate a resolution rather than bring the courts into play. Once you get to the point of letting the courts decide, everyone involved opens themselves up to the risk of the decision going against them and being put in a worse situation if they worked out the problem outside the courts. Another issue is that if you are buying a home, you are likely planning to remain there for at least a period of time. Litigation can cause your relationship with your new neighbor to start on the wrong foot, with the possibility that it never improves.

Boundary line disputes are a common occurrence that can get very complicated. When you work with a law firm that is dedicated to the practice of residential real estate law, you get the advantage of our experience in handling matters such as these, where we can offer counsel and advice on how to proceed to be able to get to the closing table with minimal delay and confrontation.

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