The doctrine of adverse possession remains alive and well in New York

Robert Frost's poem Mending Wall says "good fences make good neighbors." If the owner of an adjoining tract of land placed and maintained a fence, wall, railing or similar structure on your land, the chances are good that you would not characterize the adjoining owner as being a "good neighbor." Typically, you have every right to keep a trespasser off of your property. However, thanks to the centuries-old doctrine of adverse possession, a trespasser could end up being the owner of property for which you hold a deed.

A decision decided late in 2013 illustrates the continued vitality of the doctrine of adverse possession. Marone v. Kally involved a structure erected upon property located in Queens County. The structure was described as being a non-structural ornamental wall. Since the defendants' deed gave them title to the land where the wall was located, they deemed the plaintiffs to be trespassers and tore down the wall. The plaintiffs promptly brought suit for damages. Also requested by the plaintiffs was a determination that they had acquired a right to maintain the wall under the doctrine of adverse possession.

The plaintiffs argued that, since they built the wall in 1994, they became the owners of the land upon which the wall sat in 2004. The court found that one seeking to obtain adverse title in New York must show that possession was: (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive, and (5) continuous for the statutory period of 10 years. The court observed that the defendants' predecessor in title was well aware of the wall but did not ask that it be removed. Since the plaintiffs were able to prove each element of an adverse possession claim, the court concluded that the plaintiffs had adversely acquired title to the disputed land. Consequently, the plaintiffs were entitled to damages for the destruction of their wall.

Statutory changes

The Marone case was decided in 2013. However, it is important to emphasize that the suit was instituted in 2007 given the fact that, in 2008, the law of adverse possession across boundary lines changed significantly. On July 7, 2008, a law passed by the legislature went into effect providing that so-called "de minimus" features that straddle or pass over the boundary line which are not buildings or the like, such as fences, hedges, shrubbery and non-structural walls, are considered to be permissive and not adverse. The legislation makes it more difficult for a person to acquire adverse possession against his or her neighbor. So far, indications are that the New York courts will not apply this statutory change to claims of adverse possession which ripened into adverse title prior to July 7, 2008. The full ramifications of the statutory change are not yet certain. Landowners should remain vigilant to stop acts of trespass that might one day support an adverse possession claim.

Legal assistance

If you, or a friend or family member should ever find themselves in a boundary dispute situation, it is important to get good legal advice early. You should therefore contact Richard H Apat Esq. of the law firm of Rosado, Apat and Dudley LLP in order to get good, clear and experienced legal advice in your boundary dispute, adverse possession or easement or action.