Who Can Claim Property Based on Adverse Possession in New York?

If you're a New York State property owner, other than someone living in a high-rise apartment, you probably have one or more neighbors whose land borders on yours. Surprising as it might seem, those neighbors might be able to gain legal title to pieces of your property through a legal doctrine known as "adverse possession." And while possibly less likely, an unknown trespasser could also squat on your land and develop the same type of claim to legal ownership over time.

To make sure that your land remains yours and that a neighbor can't claim a portion of it, you should familiarize yourself with New York state's adverse possession laws. There could also be times when you yourself need to assert an adverse possession claim, over land that you feel you've developed a right to use and want to continue using.

How Adverse Possession Laws Work

Adverse possession is a legal concept that allows a trespasser, whether a stranger or a neighbor, to gain legal title over land. The concept developed in early Britain. More recently, though, the law's function is to achieve a fair result when one owner has neglected or forgotten about a piece of property while another has been using or caring for it for so long that to make them leave would create hardship or injustice. The policy goal behind adverse possession statutes in New York and elsewhere is to ensure that land is owned by people who cultivate it and use it most productively, rather than by those who ignore it.

Adverse possession in New York is governed by statute, but also by the courts. Importantly, the burden of proof to establish a claim of adverse possession is on the trespasser. The legal holder of title is the presumed owner until the adverse possessor can meet that burden. In other words, it is the trespasser's job to prove that the judge should grant title to or ownership over a piece of land.

New York's Requirements for Adverse Possession

New York has an unusually voluminous statutory scheme around adverse possession, codified in Article 5 of the Real Property Laws. This state's courts have established a variety of factors over many decades that a trespasser must prove in order to be awarded title by adverse possession. As in most states, adverse possession in New York is established from the nature of trespassers' possession and the length of time they possess the land.

A trespasser's possession must be:

1. adverse
2. under claim of right (meaning the supposed trespasser has a reasonable basis for believing that the property legally belongs to them)
3. open and notorious (using the property as the real owner would, without hiding their occupancy; see N.Y. Real Prop. Acts Law Section 512)
4. continuous for the statutory period (ten years under N.Y. Real Prop. Acts. Law § 511.)
5. exclusive (in the possession of the trespasser alone), and
6. actual (exercising control over the property).

For example, imagine that Joey and Elaine live next to one another in Crown Heights, Brooklyn. There is no dividing fence or boundary between their yards. Joey extends his home five feet over Elaine's side of the property, after viewing a plat map that supports his belief that he's within his property lines. Elaine doesn't say anything for the next 11 years. At this point, Joey can probably establish that he "owns" the land on which his house encroached.

Strict Requirements for "Claim of Right" in New York

It is actually more difficult to establish adverse possession in New York than in other jurisdictions. That's because the legislature requires trespassers to have a reasonable belief that they have legal title to the disputed property. (See N.Y. Real Prop. Acts § 501.)

This "claim of right" means that a trespasser can't intentionally occupy someone's land with the specific goal of sneakily gaining title after a decade.

New York's Strict Requirements for Type of Possession That "Count"

The New York legislature also added a statutory provision to exclude "de minimus non-structural encroachments," such as fences, hedges, shrubbery, sheds, and flowers from counting as "possession." (See N.Y. Real Prop. Acts Section 543.)

This means that merely planting a garden or even a chain link fence on a neighbor's property isn't enough to acquire a claim of title in New York.