Adverse Possession - Ya gotta believe!

Adverse possession is a long-standing doctrine which can be used to acquire title or other property rights to a parcel of land regardless of record title to the premises. By virtue of “adversely possessing” a parcel or portion thereof, a person who does not, in fact, have title to a particular property may acquire title to it which is superior to, and extinguishes the rights of, the record title holder.

In order to do so, he or she must “adversely possess” the property for a period of 10 years without interruption. Adverse possession requires the party claiming to possess the property in one of the following ways:

  • in an adverse manner

  • under a claim of right

  • openly and notoriously

  • exclusively and be in actual possession

As a practical matter, the doctrine of Adverse Possession is usually applied to resolve boundary disputes, rather than ownership of entire parcels. For example, if a property owner constructed a fence five (5) feet beyond his own property line and onto his neighbor's property, and the fence remains unchallenged for ten (10) continuous years, that property owner acquires title to the five feet of land, and the neighbor’s rights to it are extinguished!

In 2006, Walling v. Przybylo, 7 N.Y.3d 228 (2006) held that a possessor could adversely possess property even if he clearly knew from the outset the property being possessed rightfully belonged to someone else. New York’s legislature felt this result was unjust, so it modified the existing law, and amended the language of Real Property Actions and Proceedings Law of New York (RPAPL) Section 543 to change the standards for adverse possession within the state. The new wording changed the definition of the “claim of right” requirement so that now a person may no longer maintain a claim of title by virtue of adverse possession if he does not reasonably believe he owns the property claimed.

This reflects a significant change in New York law, which now only allows title to be transferred as a result of adverse possession in instances where someone believed at the time they took possession, that they owned the property they were adversely possessing, and not to someone seeking an opportunity to surreptitiously acquire a neighbor's idle property.  

If you have concerns regarding your property lines, or whether a neighbor is “adversely possessing” any portion of your property, you should contact a real estate attorney well versed in adverse possession law and the 2008 modification to the New York statute.