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Positively Adverse Possession
by Ron Davis

A disputed strip of land lying between a New York shopping center and a neighboring business that claims the property finally belongs to the center’s owners.

The shopping center and the neighboring business are located in Saugerties, in the eastern part of New York State. And the strip of land had belonged to the center’s neighbor since 1980.

A fence runs close to the boundary line that divides the shopping center and the neighbor’s properties. But that fence lies entirely on land owned by the center’s neighbor. The strip of land in dispute is between the boundary line and the fence.

The previous owner of the shopping center began caring for the strip prior to the current center owners’ purchase of the property. Some 30 years ago, a lawn service filled and began seeding the strip, which was originally a marshy area. Since then, that same lawn service has regularly maintained the strip’s grass, planted vegetation, removed rubbish and debris, and deposited snow plowed from the center’s parking lot there.

The owner of the lawn service said no one has ever objected to his activities in that regard. Nor, he added, has anyone representing the center’s neighbor granted him permission to perform those services.

The shopping center’s owners also stated that since their purchase of the center property in 1994, no one has objected to their care of the strip of land. In fact, they said, they believed that they own the strip and have exclusively maintained it as their own, even though the strip is not included in their deed description.

New York State law allows that in cases of this type, someone can claim a property by “adverse possession.” But the person making the claim must establish by clear and convincing evidence that the character of the possession follows certain guidelines. Evidence must show, for example, that possession is “hostile and under a claim of right, actual, open and notorious, exclusive and continuous” for at least 10 years.

Plus, when a claim of title is not founded upon a written legal instrument, the claimant must establish that he or she “usually cultivated or improved” or “protected by a substantial enclosure” the disputed property.

A New York State court ruled in favor of the shopping center’s owners, allowing them to take possession of the strip of land.

The neighbor appealed.

A New York State appellate court concurred that the center’s owners had proved that they own the property by adverse possession. Explained the judge, “The activities of the lawn service on behalf of the center’s owners and their predecessor over a period of 27 years is consistent with the nature, location and potential use of this property…. Based on this proof, the center’s owners made a prima facie showing of entitlement to the strip by adverse possession.” (2 North Street Corporation v. Getty Saugerties Corporation, N.Y.A.D 3 Dept, 2009)

Decision: December 2009
Published: January 2010



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