Adverse possession is a term that not all property owners fully understand, but it can significantly impact their rights. Even if an owner has full title to the land, a valid adverse possession claim can permanently alter ownership. Still, there are certain requirements that a party must meet to successfully invoke this doctrine.
The Manhattan real estate litigation attorneys of Levy Goldenberg LLP are well-versed in adverse possession and how it can affect both residential and commercial property. If you are faced with one of these claims, or you wish to assert one, connect with us to learn more about your options.
What Is Adverse Possession?
Adverse possession is a principle in real property law that allows a trespasser, including a stranger, to gain title to another person’s land. It is based on a concept of fairness by which someone who is productively using a piece of land should be able to claim ownership of it against the lawful owner who has title to the property but is neglecting it.
New York statutes and Manhattan courts both govern adverse possession, and the trespasser asserting a claim has the burden of proof. Unless and until the trespasser demonstrates the validity of their claim, the legal title holder of the land is presumed to be its rightful owner.
What Is Required to Prove Adverse Possession?
Over the decades, a rich legal history has developed surrounding adverse possession in New York. If a trespasser wishes to successfully invoke this doctrine, they must establish that their possession of the land is:
- Adverse: Against the rights and interests of the title holder.
- Under a claim of right: This means the trespasser has a reasonable belief that they have a right to the property.
- Open and notorious: Put simply, the claimant is using the land freely and publicly just as any other owner would, not trying to be secretive about it.
- Continuous: In Manhattan and elsewhere in New York, this means at least ten years of continuous use of the property.
- Exclusive: The trespasser alone is in possession of the land.
- Actual: The trespasser exercises control over the property.
To illustrate adverse possession, say that two adjoining neighbors do not have a clear boundary line. Owner A extends their home several feet onto Owner B’s land, believing that they are building on their own property. If Owner A never says anything and ten years pass, there is a good chance Owner B can raise a claim of adverse possession.
Rules That Make Adverse Possession More Difficult in New York
The above description may give the impression that adversely possessing someone’s property is relatively easy. In reality, the New York legislature has adopted measures over the years that make it more difficult to exercise this principle than it may seem. For instance:
- Reasonable belief of one’s legitimate ownership: The claim of right mentioned above requires that the trespasser have a reasonable belief that they really have title to the land. In other words, the law is written to prevent intentionally trespassing and trying to take land that you know isn’t yours.
- De minimis non-structural encroachments excluded: What this means is that minor encroachments onto someone else’s property do not count for purposes of adverse possession. One cannot simply put a hedge on another person’s land, for instance, and say it’s theirs.
Preventing an Adverse Possession Claim Against Your Manhattan Property
Despite the challenges of asserting adverse possession, as a property owner you certainly would not want to be in the position of someone raising this claim against you. These are some ways to potentially prevent it:
- Visit your entire property regularly: If you own a significant tract of land, or property that you don’t regularly use, you should visit it periodically to inspect and ensure someone else is not using it.
- Make use of undeveloped property: One way to clearly establish your ownership of the land against potential claimants is to make use of, or even develop, previously unimproved lots.
- Notify any known trespassers in writing: Assuming someone is trespassing on your land or encroaching in any way, notify them in writing and instruct them to cease.
- Consider extending permission: In some cases, it may be a good idea to explicitly give permission to someone to use your land; this implies you own it, since only the rightful owner can extend such permission.
- Consult a lawyer and take it to court: If there is any uncertainty or concern, consult an attorney right away and consider a quiet title action, if necessary, to establish your rights.
Questions About Adverse Possession in New York? We Have Answers
Whether you are claiming adverse possession against another landowner or you are faced with such a claim, an experienced Manhattan real estate litigation attorney can advise and assist you. Get started with Levy Goldenberg LLP today by calling or connecting with us online.