by Jay Girvin, Esq., Girvin & Ferlazzo. P.C., Albany, NY
Q. I’ve allowed my neighbor to farm a portion of my property for the last 15 years. My neighbor now claims that he owns the land through “adverse possession.” Have I lost the land?
A. Based on the facts you described, you can rest easy knowing that you are still the owner of the property in question. While New York law does recognize that a party may, under limited circumstances, acquire title to the lands of another through “adverse possession,” it does not appear that your neighbor will be able to establish all of the legally required elements.
While adverse possession is often looked upon unfavorably as an unfair means by which one party can “steal” the land of another without paying the owner for it, adverse possession does serve a useful purpose in resolving good faith disagreements as to which party is the true owner of a particular piece of property. In the interest of putting competing claims of ownership to rest, New York law has long recognized that the question of ownership is often best resolved by looking at how the parties themselves have treated the land. If one party has openly treated the disputed property as his own by using it for a long enough period of time, and the other party fails to object despite knowledge of that use, the law will confirm the parties’ own treatment of the property by recognizing ownership in the party that has actually used the land. The recognition of property ownership by use is generally referred to as “adverse possession.”
While it may serve a useful purpose in certain cases, the doctrine of adverse possession has long been disfavored in New York, since it results in a party acquiring title to real property without the consent of, or a payment to, the true title owner. For this reason, the law requires that the elements necessary to support an adverse possession claim be established by “clear and convincing evidence,” which is a high burden of proof. Title by adverse possession will be denied if any one of the statutory criteria is not satisfied.
The rules governing the acquisition of real property by adverse possession are set out in New York’s Real Property Actions and Proceedings Law. Generally, a party occupying real property will gain legal title to the land after a period of 10 years, as long as the occupation has been adverse, under a claim of right, open and notorious, continuous, exclusive, and actual throughout that period.
To be considered adverse, the occupation must be “hostile” in the sense that the use is inconsistent with another party’s ownership rights, and is not being done with permission. Occupation will be “under a claim of right” if the occupying party reasonably believes that the property is their own, even if that belief is mistaken. The Legislature specifically added the “reasonable belief” requirement in 2008 to prevent a party from deliberately using adverse possession to acquire property they knew they did not own.
To qualify as “open and notorious,” the nature of the occupation and use must be of such a character and degree that they would likely be noticed by another party. The use must also be continuous and actual as opposed to intermittent or sporadic. While brief interruptions are not necessarily fatal to a claim, particularly if they are consistent with the inherent nature of the use, significant gaps may result in a finding that the occupation was not continuous. Finally, the occupation must also be exclusive, meaning that other parties are not simultaneously using the land for the same or different purposes.
Not all conceivable uses of real property will be sufficient to demonstrate an occupation of land. In its 2008 amendments, the Legislature specified that property will only be deemed to have been possessed and occupied if (1) there have been acts sufficiently open to put a reasonably diligent owner on notice, or (2) the land has been protected by a substantial enclosure.  The Legislature also clarified that adverse possession could not be based on the placement of “de minimis non-structural encroachments” on the disputed property, such as fences, hedges, shrubbery, plantings, sheds and non-structural walls, or on routine maintenance tasks such as lawn mowing.  While these types of uses had been relied upon to support adverse possession claims in the past, the 2008 amendments reflected the Legislature’s belief that minor encroachments and routine maintenance are often insufficient to put property owners on fair notice that an adverse claim is being made against their property interests.
Applying these elements to your situation, your neighbor may be able to establish some of the criteria for adverse possession (i.e., he did openly and exclusively use the land continuously for more than a 10-year period), but cannot meet all the criteria. Specifically, because your neighbor used the land with your knowledge and permission, knowing that the land belonged to you, he will not be able to establish that his use was hostile or otherwise under a claim of right. With that element missing, your neighbor will be unable to prove, by clear and convincing evidence, that he has met all the requirements of adverse possession.