In New York, property is everything – in the five boroughs of New York City, but also throughout the state. If you’re a property owner, you probably have one or more neighbors whose land borders on yours. While it may seem surprising, those neighbors might be able to gain legal title to pieces of your property through a legal doctrine known as "adverse possession." And while it might be less likely, an unknown trespasser can 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 the New York state’s adverse possession laws.
There may 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.
Adverse possession is a legal concept that allows a trespasser – sometimes a stranger but more often a neighbor – to gain legal title over the land of a property owner. 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 him or her leave would create hardship. The policy goal behind adverse possession statutes, in New York and elsewhere, is to ensure that land is owned by those 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 has the presumption of ownership until the adverse possessor can meet that burden. In other words, it is the trespasser’s job to prove that the judge should grant him or her title to or ownership over the land.
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 a trespasser’s possession and the length of time he or she possesses the land.
A trespasser’s possession must be:
1) hostile (against the right of the true owner and without permission)
2) actual (exercising control over the property)
3) exclusive (in the possession of the trespasser alone)
4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and
5) continuous for the statutory period (ten years under N.Y. Real Prop. Acts. Law § 501 et seq.).
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 builds a shed that is actually on Elaine’s side of the property, covering about ten square feet of earth. Elaine doesn’t say anything. Joey uses the shed as if it were on his own land. He does this for 11 years. Under the rubric described above, Joey can probably establish that he “owns” the land on which he was encroaching. Elaine could have stopped Joey by asking, over those 11 years, that he remove his shed, or to sign a rental agreement indicating their mutual consent to the arrangement. But New York courts won’t let her suddenly eject Joey after she failed to exercise her rights for more than a decade.
After recent amendments to the adverse possession statutes in 2008, it has actually become somewhat more difficult to establish adverse possession in New York than in other jurisdictions. The legislature strengthened the “hostility” element to require that the trespasser have a reasonable belief that he or she has title to the disputed property.
This means that a trespasser can’t intentionally occupy someone’s land with the specific goal of sneakily gaining title after a decade. The New York legislature also added a statutory provision to exclude “non-structural encroachments” such as shrubbery and flowers from counting as “possession.” This means that merely planting a garden on your neighbor’s property isn’t enough to acquire a claim of title in New York. Moreover, while some states' statutory provisions make the payment of taxes on the claimed property a significant factor in an adverse possession analysis, this doesn't work as the sole evidence of adverse possession in New York.