overcoming land and development restrictions: easements, adverse possession and other property...

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© Adam Leitman Bailey, P.C. 2016

Overcoming Land and Development Restrictions: Easements, Adverse

Possession and Other Property Obstacles

April 7, 2016Judicial Title Insurance Agency LLC

Spring CLE

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Adverse Possession as a Sword or a

Shield

Adam Leitman Bailey, P.C.New York Real Estate Attorneys

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Adverse Possession Defined: Old LawTo establish adverse possession, the following five elements must be proved: Possession must be:

1. Hostile and under a claim of right2. Actual3. Open and notorious4. Exclusive5. Continuous for the required period (10

years) ▫ Belotti v. Bickhardt, 228 N.Y. 296, 302 (N.Y. 1920)



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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

Adverse Possession Defined: New Law



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NY CLS RPAPL § 512Essentials 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.”

Adverse Possession Defined: New LawAmendments to Actual Possession Requirement



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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.

Adverse Possession Defined: The New LawAmendments to the Actual Possession Requirement

Specific Exceptions



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NY CLS RPAPL § 522Essentials 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.

Adverse Possession Defined: New LawAmendments to Actual Possession Requirement



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Claim of RightThe 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)



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Claim of TitleUnder 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 RightNY 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.

Claim of Title (Old Law) vs. Claim of Right (New Law)



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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)© Adam Leitman Bailey, P.C. 2015


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Statute of Limitations for Adverse Possession

Remains the same under the new law

NY CLS CPLR § 212Possession 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.



Walling v. PryzbyloSeminole case that prompted the

legislature to amend the adverse possession statute and define a “claim of right.”


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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).



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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).



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• In accordance with the statutory mandate, the Court of Appeals has ruled, in Estate of Becker v. Murtagh, that if a claim was filed before the amendments took effect and rights were vested by adverse possession before the amendments were effective, the old law will apply.

The Court of Appeals did not address the effect the new amendments would have on cases brought after the amendments became effective but where ownership rights are alleged to have vested prior to July 7, 2008.



Court of AppealsEstate of Becker v. Murtagh

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• To date, there is only one Adverse Possession case decided in the First Department. Unfortunately while using cases from the old law, the court did not specify whether applying the old or new law.


Adam Leitman Bailey, P.C.New York Real Estate AttorneysFirst Department Cases

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Historical Photograph of 63 East 92nd Street Front Areaway



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Second Department

Cases



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Second Department Cases• Hartman v. Goldman applied the new

law, even though the alleged adverse possession would have vested in 1997, because the parties stipulated that the 2008 amendments applied.



Hartman v. GoldmanThe First Case Using the New Law


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Actual Possession Under the New Law“De minimus encroachments”

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.


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Second Department Cases• In Calder v. 731 Bergan, LLC, adverse possession

rights would have vested when the statute of limitations expired in 1984, but, without taking note of that fact, the Court nevertheless applied the new law holding that, upon the facts alleged, the plaintiffs had a reasonable basis for their belief that the disputed parcel had been conveyed to them in 1974 by the US Government and had thereby established their claim of right to the parcel under the 2008 amendments.



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Second Department Cases

• Wright v. Sokoloff applied the new law because both the commencement of the claim and the alleged vesting of the adverse possession rights occurred after the amendments took effect.



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Second Dep’t Applies Old LawHogan v. Kelly



The court held that a “claim of right” could nevertheless be established, in a case filed after July 7, 2008, where adverse possession vested prior to that date, regardless of whether or not the adverse possessor “had actual knowledge of the true owner at the time of possession,” citing Walling. As a result the court held that defendants’ knowledge, that someone other than themselves had title to the property, did not bar the defendants from asserting a claim of right under pre-2008 adverse possession law.

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Second Dep’t Applies Old LawShilkoff v.

Longhitano



In Shilkoff v. Longhitano, the court applied pre-2008 law to a case commenced in 2009 because the alleged adverse possession rights would have vested prior to the effective date of the 2008 RPAPL amendments.

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Second Dep’t Applies Old LawMaya’s Black Creek v Angelo Balbo

Realty



In Maya’s Black Creek v Angelo Balbo Realty, the court declined to decide whether the old law or the new should apply, and applied both, stating that the plaintiff’s adverse possession cause of action would be upheld in either circumstance. However, the court did not state how the plaintiff had satisfied the requirement of the 2008 amendments that there be a “reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be.”

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Third Department Cases



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In Ziegler v. Serrano, the Court applied the new law to a case where adverse possession had vested in 1995. In Ziegler, Defendant and her husband owned property as tenants by the entirety from 1972-1984, at which point the defendant abandoned her husband and left the property. Defendant’s husband received judgment for divorce and partition of the property due to defendant’s default. Defendant’s husband, now having fee title in the property, deeded the property to plaintiffs in 1985.

Ziegler v. Serrano

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The plaintiffs then continued to occupy the premises as their residence. In 1991, upon motion made by the defendant and her husband, both the divorce and partition judgments against the defendant were vacated for improper service. In 1992 defendant sued plaintiffs, challenging their title to the property. The action was dismissed due to failure to prosecute. However, in 2008, plaintiff’s moved to quiet title. 74 AD3d 1610 (3d Dept. 2010).

Ziegler v. Serrano

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Specifically mentioning RPAPL §§501(3) and 511 as amended in 2008, the Ziegler Court held that plaintiffs’ claim of right was based on a “reasonable basis” as it was pursuant to a written instrument -- a deed. Because the plaintiffs entered with a reasonable claim of right and possession and occupation was continuous for the statutory period, adverse possession was upheld. The Court acknowledged the holding in Franza and recognized that title would also have vested under pre-2008 law, but noted that the parties did not question the propriety of applying the 2008 legislation, and, therefore, the Court declined to address the issue. The Court held that a claim of right based on a deed is a reasonable basis for a claim of right under both the new law and the old law.

Ziegler v. Serrano

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In contrast, in Barra v. Norfolk S. Ry. Co., a case commenced in March of 2009, the Third Department applied the old law because title by adverse possession would have vested before the adverse possession statute was amended. Plaintiffs owned land adjacent to railroad tracks owned by the defendant. In March 2008, defendant closed the middle crossing. Plaintiff claimed, among other things, that they acquired a prescriptive easement for ingress and egress over the northern crossing.

Barra v. Norfolk S. Ry. Co.

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The Court held that when all of the elements of a prescriptive easement are present, except express hostility, hostility is generally presumed, shifting the burden to the defendant to show that the use was in fact permissive. As defendant failed to sufficiently prove that permission was implied from the beginning, the Court held that summary judgment for the defendant was inappropriate. 75 A.D.3d 821 (3d Dept. 2010)

Barra v. Norfolk S. Ry. Co.

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Franza v. Olin73 A.D.3d 44 (N.Y. App. Div. 4th Dep’t 2010)

Fourth Department

Fourth Department Cases




How To Legally Encroach On

Neighbors Land or Public Street

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You have one year to commence action to remove land if not

exceeding six inches.



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A license for the maintenance of a front or exterior wall encroachment on a public street or highway may be requested of the local legislative body in a city with a population of less than one million persons, a town or a village.



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Authorizes the maintenance of a front or other exterior wall encroachment of not more than six inches onto a public street or highway when the encroachment existed on or before January 1, 1940.



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A front or exterior wall encroachment erected after January 1, 1940 may remain if no action or proceeding requiring removal of the encroachment is commenced within one year of the giving of notice of the encroachment to the appropriate town or village official.



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Allowing the maintenance of a front or exterior wall encroachment of ten inches or less onto a public street on May 25, 1899.



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Allows any part of a building projecting into a public street on January 1, 1938 to remain until its removal is directed by the City Council.



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Permits encroachment up to six inches onto a public street or highway of the front or exterior wall of any building erected on or before January 1, 1960.

