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1113488_big_house.jpg In our last article on the subject, we discussed how a person could come to own land in New York that she never purchased, through adverse possession. It is not an easy task, but it can be done. It takes a long time; ten years. All the while, she has to do it in such a way that the real owner would have a right to evict her. Whether it even should be possible, however, is another question.

The law of adverse possession is open to abuse. It has been used by squatters to try to justify their moving into seemingly vacant homes and claiming them as their own. Recently, a Texas man was convicted of burglary and theft because he moved into a $400,000.00 home that he apparently thought was vacant. The true owners, however, were merely out of town for several months seeking medical treatment. His defense was that he was making a legitimate effort to obtain title to the house through adverse possession. He had, after all, filed an affidavit with the local government making a claim for adverse possession, turned on the utilities, and posted no trespassing signs. The jury did not accept his defense, and he eventually was sentenced to 3 months in jail, ten years’ probation, and ordered to pay $10,000.00 in fines.

The problem is more widespread than people might think. According to the same news reports, there had been a spate of approximately 60 adverse possession filings in the same county; and there were at least six additional trials scheduled in which the defendants were asserting adverse possession as a defense to similar charges.

Two of the most often disputed, and most important, elements of establishing an adverse possession claim in New York are hostility and exclusivity. Though we are not going to comment on any possible criminal charges, it is important to note that if the Texas man had tried to do the same thing in New York, he would have established both.

Hostility means that an individual asserts a right to the land, which is hostile to the rights of the legal, or true, owner. In essence, it means that the person making claim to the land must treat it like it is her own and does not belong to the real owner or to anyone else. This provides the key ingredient to obtaining title to land through adverse possession: The real owner must acquiesce in the open and obvious use of the land by another person as if the land actually did belong to that other person. Hostility, however, is negated by seeking permission from the real owner. See Estate of Becker v. Murtagh, 19 N.Y.3d 75, 968 N.E.2d 433 (2012).

If the Texas man had tried to do the same thing in New York, he would meet the test for establishing hostility. He treated the house as his own. He turned the utilities on and he tried to keep others out; hence, the no trespassing signs. These are the same things the real owner could do; and, by doing them, he made sure the only way he could stay in the house was if the real owner acquiesced in his open and obvious use of the property as his own. Unfortunately for the Texas man, however, the real owner would not put up with another, uninvited, person living in the house.

Exclusivity, in New York, means that the person claiming title through adverse possession must by the one who alone cares for or improves the property. Basically, she has to control others’ use of the property; she can let others on, but they cannot come on it without her permission. She should be able to use the land as she sees fit. Her use of the land must be separate and apart from what, if anything, the general public can use the land for and it must not be dependent on the right of anyone else to use the land. Estate of Becker v. Murtagh, 19 N.Y.3d 75, 968 N.E.2d 433 (2012).

If the Texas man had tried to obtain title to a house in New York, rather than Texas, through adverse possession, he would be able to establish exclusivity. He tried to control access to the property by posting the no trespassing signs. His use of the property did not depend on the right of anyone else to be on, or to use, the property. It was separate and apart from the right of the general public to use the property; according to the news articles the house was vacant when he moved in and no one other than his family moved in with him. His use did not depend on anyone else’s right to be on the property; it was not as if the real owner opened a hostel and let just anyone stay there who wanted to or that the real owner had given him permission to stay at the house.

The law of adverse possession is interesting, complicated, and open to abuse. It is, however, the law, and until it changes every property owner, whether an individual or business, should be familiar with at least its basic concepts. The best defense against fraud and abuse often is knowledge; by knowing what can be done, you can prevent what should not be done.

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