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).