Adverse Possession in New York State

Previous | Next
 rated by 0 users
Latest post 02-01-2010 8:19 AM by Drew. 4 replies.
  • 01-28-2010 6:13 PM

    • PCR91646
      Consumer
    • Not Ranked
    • Joined on 01-28-2010
    • NY
    • Posts 3

    Adverse Possession in New York State

    I am a victim of adverse possession.  I found out after the statute of limitations expired that my family lost considerable land to a neighbor, who built part of his house on our property.  My only recourse was to have an affadavit attached to his recorded deed, so any prospective buyer would know there was an issue with the boundary.  I know untimately a court will have to issue the neighbor a clear deed.  The whole issue was caused by an inconsiderate person not having a survey done to make sure of the boundary lines.  I cannot stress enough the importance of having a survey done on prospective property.  It saves disagreements among neighbors, and hard feelings.  The neighbor involved in this case is actually smug about the issue and thinks I am the perpetrator of ill will, like I have no right to investigate a wrong and try to correct it in a civil manner.  I was wondering if anyone else has encountered a similar experience. 

  • 01-28-2010 6:28 PM In reply to

    Re: Adverse Possession in New York State

    Your post is a good warning to others not to snooze when things are happening.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 01-28-2010 11:09 PM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,504

    Re: Adverse Possession in New York State

    I am a bit suprised you lost--NY is one of the states where I read the person seeking adverse possession is held to very tight standards and the benefit seems to run with true owner  in majority of cases.....you really must have been asleep OR you failed to use good counsel OR both?

     

    From a NY case:

     

    "  A party seeking to obtain title by adverse possession must prove by clear and convincing evidence the following common-law requirements of adverse possession: (1) that the possession was hostile and under claim of right; (2) that it was actual; (3) that it was open and notorious, (4) that it was exclusive; (5) and that it was continuous for the statutory period of 10 years

    Here, after close of discovery, we presented evidence establishing that the claimants cold not prevail on their adverse possession claims because they admitted cooperating with their former neighbor in constructing and maintaining the fence separating the driveway. Thus, the "possession" of the strip of land was not "hostile," because the consensual use of the area in question did not constitute an actual invasion of or infringement on our client's right to the strip of land on the other side of the fence. The court cited a long line of cases holding that, "When permission can be implied from the beginning, adverse possession will not arise until there is a distinct assertion of a right hostile to the owner." 

     

    And I'm aware of an appeals case in NJ which said in effect if the structure site was not known to be "wrong"   then the possession was not hostile not notorious and thus the time clock never even started!

       &nbs... "



  • 01-31-2010 9:27 PM In reply to

    • PCR91646
      Consumer
    • Not Ranked
    • Joined on 01-28-2010
    • NY
    • Posts 3

    Re: Adverse Possession in New York State

    Thanks for your reply, Drew.  Well, I haven't actually lost yet.  A court has not heard the case.  There is an affadavit attached to his deed, so that in the event he wants to sell his property, there will be a red flag.  The owner will not agree to pay any compensation to settle the case. I could push the case myself at quite a cost and not really be sure of the outcome.   So it sits in limbo until it ultimately goes to court and is settled.  I know in New York State, there has been some legislation passed in favor of victims, but the law is still very unfair.  At the very least, the term should be 20 years, not 10.  I am in the process of fencing my property and defining the accurate boundaries so that future generations won't have the hassle I am going through, and neighbors will know where the boundaries are.   

  • 02-01-2010 8:19 AM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,504

    Re: Adverse Possession in New York State

    It reads to me like you are doing exactly the wrong things!

    The deed attachment probably serves as notice of the  adverse use time clock having a definite starting time--and once it times out you are dead meat.

    The way I understand some of the case law elsewhere--once you become aware of the adverse use or should have been aware then there is no question of the time clock running against you.

     

    Your post makes no sesne--if the home is on you lands --how do you accurately fence your lands?

    Your survey is not accurate until som ecourt agres it is accurate--and you need to use a surveyor with considerable court experience--because you better get there!

    In many places you rights as true land owner , once you prove you are the true land owner are superior--and that means you can require the other guy to move the house or tear it down back to the property line--and you need to focus on same--or his costs of doing so.  If a $4 million dollar house sits on a $1,000 scrap of land--what is the true economic value of that scrap---its the avoided cost of moving or rebuilding the home!



Page 1 of 1 (5 items) | RSS

My Community

Community Membership New Users: Search Community