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Adverse Possession in New York: When Do The New Rules Apply?

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abstract-circles-and-lines-shape-1187591-m.jpgDisputes involving adverse possession of property, or boundary line disputes, in New York always are contentious. As we have previously written, most people take umbrage when someone tries to take their property; property that they paid for, pay taxes on, and have a deed that says belongs to them. Similarly, most people who claim title to land through adverse possession truly believe it belongs to them and only bring claim to it when they find out someone else actually holds legal title to it.

Adverse Possession law in New York has been so contentious that major changes were enacted to it in 2008. Those changes generally make it harder for someone to obtain title to the land through adverse possession. They reflect the belief that obtaining title to land through adverse possession generally is not favored; in many ways it is not fair or equitable. The problem is that the change in the law complicated the issue. Does the new law apply to claims brought after the law was changed, just because they were brought, i.e., an action was commenced in court, after the law was changed? As with all good legal questions, there is a very definitive, straightforward answer, which just happens to be good for business: It depends.

What law applies depends on when the adverse possessor claims he gained title to the disputed property. For anyone who alleges that their claim to title vested prior to 2008, when the Real Property Actions and Proceedings Law ยงยง 501, 522, and 543, were amended, the law as it existed prior to 2008 applies to their claim. See Shilkoff v. Longhitano, 94 A.D.3d 974, 943 N.Y.S.2d 144, 145 (2nd Dept. 2012); Asher v. Borenstein, 76 A.D.3d 984, 986, 908 N.Y.S.2d 90, 92 (2nd Dept. 2010).

The Second Department stated the applicable rule, and the reasoning behind it, in Hogan v. Kelly, 86 A.D.3d 590, 591-92, 927 N.Y.S.2d 157, 158-59 (2nd Dept. 2011):

In order to establish a claim to property by adverse possession, a claimant must prove, inter alia, that possession of the property was: (1) hostile and under a claim of right; (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period (see Walling v. Przybylo, 7 N.Y.3d 228, 232, 818 N.Y.S.2d 816, 851 N.E.2d 1167; Belotti v. Bickhardt, 228 N.Y. 296, 302, 127 N.E. 239; Bratone v. Conforti-Brown, 79 A.D.3d 955, 957, 913 N.Y.S.2d 762; Asher v. Borenstein, 76 A.D.3d 984, 986, 908 N.Y.S.2d 90; **159 Gourdine v. Village of Ossining, 72 A.D.3d 643, 897 N.Y.S.2d 647). Under longstanding decisional law applying these traditional common-law elements, a party seeking adverse possession could assert that he or she was acting under a “claim of right” regardless of whether he or she had actual knowledge of the true owner at the time of possession (see Walling v. Przybylo, 7 N.Y.3d at 232-233, 818 N.Y.S.2d 816, 851 N.E.2d 1167; Asher v. Borenstein, 76 A.D.3d at 986, 908 N.Y.S.2d 90; Merget v. Westbury Props., LLC, 65 A.D.3d 1102, 1105, 885 N.Y.S.2d 347). However, in 2008 the Legislature enacted changes to the adverse possession statutes contained in RPAPL article 5 (see L. 2008, ch. 269). *592 These changes included rewriting RPAPL 501 to include, for the first time, a statutory definition of the “claim of right” element necessary to acquire title by adverse possession. Pursuant to RPAPL 501(3), “[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.” The 2008 amendments to RPAPL article 5 took effect on July 7, 2008, and apply to all claims filed on or after the effective date of the amendments (see Hartman v. Goldman, 84 A.D.3d 734, 924 N.Y.S.2d 97).

On appeal, the plaintiff contends, relying on the new statutory definition of “claim of right,” that the defendants failed to establish that they acquired title to the premises by adverse possession because they were aware that Carmen Powell was the decedent’s sole heir and, thus, the rightful owner of the premises. Although this action was commenced after the effective date of the 2008 amendments, we agree with our colleagues in the Third and Fourth Departments that the amendments cannot be retroactively applied to deprive a claimant of a property right which vested prior to their enactment (see Hammond v. Baker, 81 A.D.3d 1288, 1290, 916 N.Y.S.2d 702; Perry v. Edwards, 79 A.D.3d 1629, 1631, 913 N.Y.S.2d 460; Barra v. Norfolk S. Ry. Co., 75 A.D.3d 821, 825-826, 907 N.Y.S.2d 70; Franza v. Olin, 73 A.D.3d 44, 47-48, 897 N.Y.S.2d 804). Therefore, the version of the law in effect at the time the purported adverse possession allegedly ripened into title is the law applicable to the claim, even if the action was commenced after the effective date of the new legislation. We note that this issue was not before us in Hartman v. Goldman, 84 A.D.3d 734, 924 N.Y.S.2d 97, and was not necessary to resolve in Maya’s Black Cr., LLC v. Angelo Balbo Realty Corp., 82 A.D.3d 1175, 920 N.Y.S.2d 172, in which we found that the plaintiff’s complaint stated a cause of action under both prior and current law.

Here, the defendants’ adverse possession claim is founded upon a written instrument, and they allege that they acquired title to the premises on June 27, 2006, 10 years after the deed purportedly conveying title to the defendant Dorothy Kelly was recorded. Since title allegedly vested in the defendants prior to the enactment of the 2008 amendments, the new statutory definition of “claim of right” is not controlling. Applying long-standing decisional law, the defendants made a prima facie showing that they possessed the premises under a claim of right, which was not defeated by their alleged knowledge that Carmen Powell was the rightful owner of the premises (see Walling v. Przybylo, 7 N.Y.3d at 232-233, 818 N.Y.S.2d 816, 851 N.E.2d 1167; Merget v. Westbury Props., LLC, 65 A.D.3d at 1105, 885 N.Y.S.2d 347). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants’ occupation of the premises was under a claim of right.

[Emphasis supplied]

When you consider what is at stake, applying the law that existed when the adverse possessor supposedly obtained title to the land, rather than the law that exists at the time he goes to court to ratify it, is fair. It is not equitable to retroactively take away someone’s property rights. The law exists for a reason, so that everyone may know what the rules are and guide their own actions accordingly. Even if you disagree with the law of adverse possession as it existed prior to the changes in 2008, you should be able to agree with that premise, and take solace in the fact that the new, more stringent rules will apply to all claims which ripen after that date.

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Ray Grasing