Adverse Possession Update
Hello all, here is a recent decisions which lays out a successful claim for adverse possession under NY law. This has been of interest to forum readers so I thought I’d share this excerpt. _____ LBMH Group, L.P., Plaintiff(s) v. Morley Safer and Jane Safer, Defendant(s), 111637/09 Justice Marcy S. Friedman 111637/09 Decided: November 04,…
Hello all, here is a recent decisions which lays out a successful claim for adverse possession under NY law. This has been of interest to forum readers so I thought I’d share this excerpt.
_____
LBMH Group, L.P., Plaintiff(s) v. Morley Safer and Jane Safer, Defendant(s), 111637/09
Justice Marcy S. Friedman
111637/09
Decided: November 04, 2010
DECISION/ORDER
In this action, plaintiff LBMH Group, L.P. seeks a permanent injunction directing defendants, Morley Safer and Jane Safer, to remove a wall that is allegedly encroaching upon plaintiff’s property, and a declaration that it is the owner of the disputed parcel under the wall. Plaintiff moves for summary judgment as to liability on its claims against defendants. The first cause of action is for an injunction; the second is for a judgment declaring that it is the owner of the disputed parcel; and the third seeks damages due to the alleged structural unsoundness of defendants’ wall. Defendants cross-move for summary judgment dismissing plaintiff’s first and second causes of action, and for summary judgment on their counterclaim for a declaratory judgment that they are the owners of the disputed property by adverse possession.
The standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action “sufficiently to warrant the court as a matter of law in directing judgment.” (CPLR 3212[b]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].) “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) Once such proof has been offered, to defeat summary judgment “the opposing party must ‘show facts sufficient to require a trial of any issue of fact’ (CPLR 3212, subd. [b]).” (Zuckerman, 49 NY2d at 562.)
As to the parties’ claims involving title to the property and adverse possession, the court finds that, contrary to plaintiff’s contention, the 2008 amendments to the RPAPL do not apply to the instant action. It is undisputed that defendants’ title to the property would have vested prior to the enactment of the amendments. The Appellate Division, Third and Fourth Departments, have held that under such circumstances, the amendments may not be applied retroactively to divest a party of a vested property right. (Franza v. Olin, 73 AD3d 44 [4th Dept 2010]; Barra v. Norfolk Southern Railway Co., 75 AD3d 821 [3d Dept. 2010].) Contrary to plaintiff’s contention at oral argument, this court is bound by the determinations of the other Appellate Divisions of the Supreme Court in the absence of a determination by the Court of Appeals or the Appellate Division, First Department. (See Tzolis v. Wolff, 39 AD3d 138 [1st Dept 2007]; People v. Shakur, 215 AD2d 184 [1st Dept 1995].)
Accordingly, the court need not reach the issue of whether defendants’ wall is non-structural or whether the alleged encroachment of the wall is de minimis, because those exceptions to an adverse possession claim are found in the 2008 amendments to the RPAPL. (See RPAPL 543.)
Prior to the 2008 amendments, to support a claim for adverse possession, a wall was required to constitute a “substantial enclosure.” (RPAPL 522[2].) Here, defendants’ expert opined that the wall enclosed defendants’ property. (See Wexler Aff. In Support of Cross-Motion, at ¶7.) Plaintiff’s expert also opined that the subject wall “encloses Defendants’ backyard.” (Wolfson Aff. In Support of Motion, at ¶8[c].) Thus, the wall at issue here is a sufficient enclosure to support a claim for adverse possession.
It is well settled that “[t]o establish a claim of adverse possession, the following five elements must be proved: Possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period.” (Walling v. Przybylo, 7 NY3d 228, 232 [2006].)
It is undisputed that for over ten years, starting as early as 1996, defendants possessed the disputed parcel of land in a manner that was open, notorious, continuous, and hostile to the interests of plaintiff. In factually similar circumstances, such conduct has been held sufficient to warrant a finding of acquisition of the parcel by adverse possession. (Id. at 232.)
It is further settled 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.” (Id. at 230.) Rather, “[t]he ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period.” (Id. at 232 [quotation marks and citation omitted].) On this record, plaintiff does not argue that defendants had actual notice of plaintiff’s title. More significantly, there is no dispute that plaintiff never objected to the presence of defendants’ wall prior to the commencement of the instant action. The failure of plaintiff to assert its rights in a timely manner prevents it from prevailing on its claim. (Id.)
The court rejects plaintiff’s contention that summary judgment should be denied due to its claimed need for discovery. It must “appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated.” (CPLR 3212[f].) “A mere chance or hope that something will be uncovered [through discovery] which will add to the case is insufficient.” (Harris v. Alcan Aluminum Corp., 91 AD2d 830, 831 [4th Dept 1982], affd for reasons stated below 58 NY2d 1036 [1983].) Thus, determination of a motion for summary judgment will not be avoided by a claimed need for discovery, even where the opponent of the motion alleges wrongdoing on the movant’s part, unless the misconduct is identified with specificity, and at least some “evidentiary basis” is offered “to suggest” that discovery may lead to relevant evidence. (See Harris, 91 AD2d at 831; Boston Safe Deposit & Trust Co. v. Hoffman, 177 AD2d 368 [1st Dept 1991].) Here, plaintiff makes no showing of any issue on which discovery is required. Plaintiff’s own expert had the opportunity to inspect the wall and to submit an affidavit on the instant motion.
Plaintiff’s third cause of action seeks damages to its own wall which abuts the disputed parcel, based on the allegation that defendants’ wall is structurally unsound. Plaintiff fails to make a prima facie showing of this claim. Its expert’s affidavit is silent as to whether defendants’ wall is structurally unsound or causing damages to plaintiff’s wall. Finally, the court need not address defendants’ second counterclaim for negligence, as they have not moved on that counterclaim.
It is hereby ORDERED that plaintiff’s motion for summary judgment is denied; and it is further
ORDERED that the cross-motion of defendants for summary judgment is granted to the extent of dismissing plaintiff’s first and second causes of action against them; and it is further
ORDERED, ADJUDGED, and DECLARED that defendants Morley Safer and Jane Safer are the lawful owners of the disputed parcel, vested with absolute and unencumbered title in fee to the property; and it further
ORDERED that the parties are directed to appear in Part 57 (Room 335, 60 Centre St.) for a preliminary conference on Thursday, December, 9, 2010, at 11:00 a.m.
This constitutes the decision, order, and judgment of the court.
I think that if you do it without them knowing, then the possession probably would not have been sufficiently “open and notorious”. Law-talking guys and gals would know more about the situation if the owner was somehow impaired cognitively.
You prevent yourself from being screwed over by thoroughly surveying the land when you purchase and then informally surveying it every few years to make sure nothing is amiss.
Anyway, the law was changed in 2008 to impose a “good faith” requirement on the adverse possessor, essentially meaning that the possessor had to have a good reason to believe that the land was in fact theirs (which I imagine are things like it was described in the title received, the walls dividing the property were in place for lengthy periods, etc.) The OP was just pointing out that courts tend to be interpreting this statute only prospectively — i.e., if the land was posssesed for more than ten years prior to the new law, then the old version applies.
Nobody is going to comment on the fact that the defendant is Morley Safer? Next up on 60 minutes: when your asshat neighbor demands you remove a wall that is on your own property!
“The theory is that you took care of the land when the title holding owner did not.”
Ok I understand that, but then you have to prove that the land you are taking care of – needed to be taken care of in the first place.
“It’s not stolen if the law says it is OK”
Yes but the law doesn’t say it’s Ok until 10 years down the road when it becomes yours through adverse posession.- Up until then you’re just trespassing on someone else’s property.
What if i had a senile elderly neighbor and I just started encroaching upon they’re land (perfect land that has no need to even be tended to) without them knowing?
My point is how could you prevent someone from screwing you over with a stupid law like this on the books?
The theory is that you took care of the land when the title holding owner did not. It’s not stolen if the law says it is OK.
It’s pretty uncommon for adverse possession these days to apply to the entire lot. For example, this case involved the ownership of the land underlying a wall between two properties on East 65th Street in Manhattan (who else would have the money to sue over this) that was encroaching onto the property (I am guessing that the entire wall was on the owner’s property, thus shifting the property line by that much to the middle of the wall).
I would imagine that for property taxes you would have to show that the change to the property caused by the adverse possession would materially change your tax assessment which is kind of hard to do when you are talking about a few square feet at most. Plus, I imagine the city would claim that you are time-barred from challenging the assessment and the same lack of care the owner exercised in surveying their own property would preclude a challenge to the assessments years after the fact. (Theoretically you could countersue the adverse possessor under some type of quantum meruit theory for the pro rata share of the taxes paid but I don’t really know.)
adverse possession is one of those odd concepts carried over from ancient common law. It is more or less squatters rights.
In Manhattan you sometimes notice little brass plaques set in the sidewalk stating “this is the property line of such and such” which prevents adverse possession claims.
It is a strange business but I guess in the end it helps protect modern property owners from ancient claims and patents that could turn up.
How can you just start owning something you never paid for? and How would property taxes come into play? Would the person who gained ownership through this adverse posession law be required to pay back taxes or would they have to pay the “real” owner the difference?
If the original owner has been paying taxes on that for 10 years and the new ones haven’t then how can this be justified and if you want to get technical couldn’t it be said that the “new” owners stole your property?
This area of law deals with people who, after ten years of using someone else’s real property, are legally entitled to own that property, under certain circumstances. The term is “adverse possession” and it can be an unwelcome surprise to those who have not protected or monitored their property boundaries. There were some recent (July 2008) changes to the New York statute which deals with this issue.
In essence, this case makes it clear that the recent amendments to the Real Property Law do not apply to adverse possession claims which would have become valid before the effective date of the recent amendments, i.e.:
“[T]he 2008 amendments to the RPAPL do not apply to the instant action. It is undisputed that defendants’ title to the property would have vested prior to the enactment of the amendments. The Appellate Division, Third and Fourth Departments, have held that under such circumstances, the amendments may not be applied retroactively to divest a party of a vested property right.”
Therefore, if you began using part of an adjoining property ten years prior to July 7, 2008, and you did it continuously since that time (and satisfied the remaining of the five elements above), then you may be able to show that you now own that portion of the adjoining property.
If the ten year period of use ended AFTER July 7, 2008, then any claim for adverse possession would be subject to what is considered a higher hurdle to establish an adverse possession claim, in certain cases.
“Can you explain in laymen’s terms what this all means?”
I second that motion!
It’s not my nap time yet.
PS mom, unless you’ve been living in a tent on someone else’s vacant lot for a few years and want to claim the right to remain or you own a wall that extends across someone else’s property line, this probably has no real meaning for you. But if you are curious, google adverse possession and you’ll get some good definitions of what this is about.